Clergy Discipline Measure 2003 Code of Practice

CLERGY DISCIPLINE MEASURE 2003

CODE OF PRACTICE

Issued January 2006 Revised: February 2011, July 2013 & July 2016 Code of Practice: Contents

Diagram of disciplinary procedures

Preface by the Chairman of the Clergy Discipline Commission

Paragraph No. INTRODUCTION Purpose of the Code of Practice 1 The Clergy Discipline Commission 3 Purpose of discipline 4 Three stages for complaints 6

BEFORE FORMAL PROCEEDINGS ARE INSTITUTED; “Stage 1” Minor complaints should be resolved informally 9 Serious misconduct where no complaint has yet been made 10 Archdeacon’s role 11 If children are involved – the Child Protection Officer 13

AFTER FORMAL PROCEEDINGS ARE INSTITUTED; “Stage 2” Overriding objective of the disciplinary procedures 14 Who exercises discipline? 17 Who can be disciplined under the Measure? 18 On what grounds can disciplinary proceedings be brought? 22 What is not covered by the Measure? 24 What are acts or omissions contrary to ecclesiastical law? 25 What is neglect or inefficiency? 27 What is unbecoming or inappropriate conduct? 28 Who can start disciplinary proceedings? 30 Parochial Church Council 30 Churchwarden 30 Others with a proper interest 34 Who can make complaints in respect of non-parochial clergy? 35 Will help be available for complainants to make a formal written complaint? 36 How is a complaint made? 40 Complaint must be in writing and contain the prescribed information 40 No anonymous complaints will be considered 41 Complainant must set out grounds for complaining 43 Written evidence in support must be provided 44 Bishop may grant further time for the submission of evidence in support 46 To whom is a complaint made? 48 When can a complaint be made? 52 Extension of time limit by the President of Tribunals 53 What about disciplinary proceedings for employed clergy? 57 What happens if the complaint concerns criminal conduct? 58 What happens if the complaint relates to marital misconduct? 61 How can time for dealing with a complaint be extended until other related proceedings have finished? 62 Preliminary scrutiny of the complaint: 63 Confirming whether a formal complaint is being made 63 Acknowledgement of the complaint 65

2 What is the role of the registrar? 67 Can the registrar delegate? 70 Conflicts of interest 70 Who notifies the respondent about a complaint? 71 Withholding the identity of the complainant during preliminary scrutiny 72 Help and advice for respondent clergy 75 Consulting the complainant for clarification 77 Registrar to check entitlement of nominated complainant to complain 80 What if more time is needed for preliminary scrutiny? 82 What should be in the registrar’s report? 84 Registrar as bishop’s legal advisor 86 Registrar’s report where more than one complaint or complainant 87 The bishop’s role 90 Delegation in cases of conflict of interest 91 Clergy under the oversight of a Provincial Episcopal Visitor 95 What care and support will be given during disciplinary proceedings? 97 Care and support: bishop is chief pastor of all within the diocese 97 What can the bishop do on receipt of the registrar’s report? 103 Dismissal by the bishop of a complaint under section 11(3) 104 Complainant’s right to request a review of a dismissal under s11(3) 107 The respondent’s answer to the complaint 110 What courses can the bishop take? 113 Can the bishop suspend whilst the complaint is considered? 113 How long can the bishop take to decide what to do? 114 Who can the bishop meet when deciding what to do? 115 Decision to take no further action 117 Review by the President of Tribunals 120 Decision that there should be a conditional deferment 125 Record of conditional deferments 130 Decision in favour of conciliation 132 What is conciliation? 133 Both complainant and respondent must agree to conciliation attempt 134 Appointment of the conciliator (or joint conciliators) 138 The conciliator’s written report 142 What happens if conciliation attempt is not successful? 144 Decision to impose penalty by consent: general considerations 145 Complainant & respondent may make representations 151 Respondent’s consent must be in writing in prescribed form 152 Written confirmation from the bishop 153 Decision to impose penalty by consent: resignation or prohibition 155 Resignations that are not by way of penalty by consent 155 Resignation before a complaint is made or considered 156 Right for respondent to withdraw consent within 7 days 158 Written confirmation from bishop 160 Decision in favour of formal investigation 162 What happens if there is a criminal conviction? 163 Procedure if respondent upon conviction receives prison sentence 163 President of Tribunals must be consulted 164 Review by the archbishop of decision to impose a penalty 166 What happens if there is an acquittal at a criminal trial? 167

3 What happens if there are divorce proceedings? 168 Procedure if petition is based on adultery, unreasonable behaviour or desertion 168 President of Tribunals must be consulted 169 Review by the archbishop of decision to impose penalty 171 Barred clergy under the Safeguarding Vulnerable Groups Act 172 Duty on clergy to report 173

THE BISHOP’S DISCIPLINARY TRIBUNAL; “Stage 3” What is a formal investigation? 176 Duty of complainant and respondent to co-operate with the Designated Officer 177 Designated Officer’s written report to the President of Tribunals 180 President decides if there is a case to answer 183 Appointment of members of the tribunal 186 Respondent may make representations about their suitability 187 Conduct of proceedings 191 Parties to co-operate with each other 191 Designated Officer to conduct the case for the complainant 192 Independence of Designated Officer 192 President may direct a complaint is to be withdrawn 194 President may direct an attempt or further attempt at conciliation is to be made 195 Hearings normally in private 196 Power for tribunal to exclude members of public from a hearing 197 Tribunal’s discretion as to how hearing is conducted 198 How the tribunal makes its decision 200 Civil standard of proof 200 Decision of the majority 201 Decision to contain the reasons of both the majority and the minority 202 What penalty can be imposed by a tribunal 203 Bishop may be invited by the tribunal to make written representations 203 Prohibition for life 204 Limited prohibition 205 Removal from Office 206 Revocation of licence 207 Injunction 208 Rebuke 209 Conditional discharge 210

OTHER MATTERS What happens if a complainant or respondent dies? 211 Death of respondent 211 Death, serious illness or incapacity of complainant 212 Suspension 216 When suspension can be imposed 216 To be imposed only if necessary 217 Scope of suspension 219 Suspension pending an application under section 9 222 Suspension if significant risk of harm to a child or vulnerable adult 223 Giving notice of suspension 224 Revocation of suspension 226 Care and support of respondent during suspension 229 Appeal against suspension during proceedings 231

4 Appeals from the tribunal 233 Respondent’s right of appeal 233 Appeal by the Designated Officer 234 The Archbishops’ list 236 Not open for public inspection 236 Categories of names in the list 237 Review by the President of the inclusion of a name 238 Five-yearly review 240 Complaints against bishops and archbishops 242 Vicar-General’s court 245 Removal of prohibition for life and deposition 246 Grounds for applying 247 Procedure 248 Removal of limited prohibition 253 Application must be supported by the bishop 254 Legal aid 256 Available for respondent during stages 2 & 3 257 Relationship with capability procedure 260 Flexibility 262 Publicity and media relations 264 Determinations to be announced publicly 264 Identity of children and others may be withheld from public pronouncement 265 Media enquiries to be addressed to appropriate communications officer 266

Appendices:

Appendix A: Contact details for bishops, and legal officeholders

Appendix B: Specimen forms and letters: B1: Form for a complaint about a priest or deacon B2: Respondent’s answer to a complaint B3: Bishop’s letter of acknowledgment B4: Registrar’s letter of notification to the respondent B5: Bishop’s letter to the respondent B6: Bishop’s letter to the complainant – no further action

STEPS IN FORMAL DISCIPLINARY PROCEEDINGS References to the UNDER THE CLERGY DISCIPLINE MEASURE 2003 CDM & Rules

PCC CHURCHWARDEN OTHERS

s8, s9, s10 COMPLAINT r4-8 in writing forms 1a & 3

Sent to the r9 BISHOP

s11 PRELIMINARY SCRUTINY r10-14 by diocesan registrar

Other procedures Within four weeks, s12 may be more the BISHOP decides suitable r18 If criminal, refer to Police

No proper No sufficient Not a discipline interest substance matter Recognised as a s36; r60-66 disciplinary matter Suspension & form 12a

s11(3); r15, r16 Dismiss Respondent’s written & form 4 (Complainant may appeal) answer r17; forms 2 & 3

COURSES AVAILABLE TO THE BISHOP s13; r20-22 & form 5

s14; r23-25 No further Conditional Conciliation Penalty with Formal & form 6 action deferment Consent Investigation s15; r26 (Complainant s16; r27 may appeal) & form 7 s17; r28

President considers if s17; r29 there is case to answer

Tribunal to s18, s22, s24 adjudicate Case to answer No case to answer r30-53

No further steps to be taken s17; r29 Appeal s20

6 Preface

This Code of Practice offers general guidance on how formal complaints of misconduct against clergy of the Church of England are made and determined under the Clergy Discipline Measure 2003. The Code explains on what grounds formal complaints can be made, by whom they can be made, and how they are to be made. It shows the proper procedures for considering complaints, and it describes the various options which may be pursued if a complaint proves to be well- founded.

The Code is not intended to be, and cannot be, a detailed work on all aspects of the complaint procedures – it would be far too long if it were. Instead, it aims to be a relatively simple guide, to point users in the right direction, and to draw their attention to the relevant provisions of the Measure and the Clergy Discipline Rules.

The Code (in accordance with the Measure) does not cover complaints relating to matters involving doctrine, ritual or ceremonial. Nor does it cover minor complaints or grievances, which are better dealt with informally without recourse to legal procedures.

The Clergy Discipline Commission, which produced this Code, has responsibility also for giving guidance specifically to those who have particular functions to perform in connection with clergy discipline. In addition, its duties include giving advice to disciplinary tribunals and bishops as to the penalties which are appropriate in particular circumstances. Such guidance and advice is not suitable for inclusion in this general Code of Practice, but will be included in other publications produced by the Commission from time to time.

INTRODUCTION Key to Useful References: Purpose of the Code of Practice s = a section in the Clergy Discipline 1. This Code of Practice is issued by the Clergy Discipline Commission Measure 2003 under section 3 of the Clergy Discipline Measure 2003 (“the Measure”). The purpose of the Code is to provide guidance to all who are concerned r = a rule in the Clergy Discipline in formal clergy discipline procedures under the Measure. Rules

2. The Code does not have the force of law, but compliance with its provisions will be assumed to be in accordance with best practice. Using s39 this Code is no substitute for referring to the Measure and to the Clergy Discipline Rules 2005, which together set out the procedures that must be followed. The Measure and the Rules can be downloaded through links at www.churchofengland.org/about-us/structure/churchlawlegis.

3. The Clergy Discipline Commission comprises no more than 12 members s3 appointed by the Appointments Committee of the Church of England, including at least two people from each House of the General Synod, and at least two people who hold particular judicial office or particular professional legal qualifications. The make-up of the Commission is designed to promote a wide representation of views and experience. As well as producing this Code of Practice, it has other specific statutory functions prescribed in the Measure, such as giving general advice to disciplinary tribunals, the courts of the Vicars-General, bishops and archbishops on the penalties which are appropriate in particular circumstances. The Commission cannot give guidance on penalties in individual cases.

Purpose of Discipline

4. The purpose of the administration of discipline is to deal with clergy who are found to have fallen below the very high standards required and expected of them. For the individual member of the clergy who is subject to discipline, this involves:  the imposition of an appropriate penalty  pastoral support  encouraging repentance and forgiveness  whenever possible putting right that which is wrong  attempting reconciliation  moving on constructively from the past There is also a wider picture in that the administration of discipline must:  have regard to the interests of justice for all who may be affected by the faults, failings or shortcomings of the clergy, including the complainant and the interests of the wider church  support the collective good standing of all faithful men and women who are called to serve in the ordained ministry  ensure the clergy continue to be worthy of the great trust that is put in them as ordained ministers by both the Church and the public.

5. This Code throughout refers to a member of the clergy against whom a formal complaint is made as “the respondent”. This emphasises that the member of the clergy in question is responding to a formal complaint as part of the process of investigating and resolving any difficulties that may have arisen, rather than simply being called upon to “defend” past actions. The person who makes a formal complaint against a member of the clergy is referred to as “the complainant”.

Three Stages for Complaints

6. The Measure, the Clergy Discipline Rules and the Code of Practice are all concerned with resolving formal complaints within a formal disciplinary process. There are, however, three stages to a complaint, the first of which falls outside the scope of the Measure and any formal proceedings.

7. The first stage of a complaint is the period before any formal proceedings are instituted under the Measure. The second stage begins when a formal complaint is made to the bishop under the Measure and continues until the bishop has decided on the appropriate course to take. The third stage occurs if the bishop directs that there should be a formal investigation to see if there is a case to answer before a bishop’s disciplinary tribunal.

8. Disciplinary proceedings against the clergy (i.e. stages 2 and 3) may only take place in accordance with the Measure, and the procedures set up under it, and should only be about misconduct that is potentially sufficiently serious for referral to a bishop’s disciplinary tribunal. Proceedings under the Measure are not for the determination of grievances.

BEFORE FORMAL PROCEEDINGS ARE INSTITUTED; “Stage 1”

9. This Code of Practice gives guidance for the purposes of the Measure. The Measure is concerned with formal disciplinary proceedings which have been instituted in accordance with the law. However, a bishop will receive complaints from people who do not wish to invoke formal disciplinary procedures. Often, such complaints or grievances are not about serious matters of misconduct, and can be resolved informally without recourse to law if they are handled with sensitivity and without undue delay. Minor complaints should not be the subject matter of formal disciplinary proceedings. (“In fact in the case of many minor complaints an apology or an informal rebuke may be all that is required “Under Authority” and the full complaints process would not need to come into play”). If a GS 1217 at C.3 problem is initially ignored so that discontentment is allowed to continue, then there may be a danger that the problem becomes bigger, and consequently harder to resolve.

10. There may be occasions when no formal complaint under the Measure has yet been made but the bishop receives information about a priest or deacon which, if true, would amount to serious misconduct. The bishop will obviously wish to find out more about it. However, the bishop should be cautious about the extent of any direct involvement. The bishop should not do anything that could prejudice, or appear to prejudice, the fair handling of any formal complaint under the Measure that could be made subsequently. Instead, the bishop should consider asking an appropriate person, such as the archdeacon, to look into it.

11. The archdeacon or other person looking into the matter will need to form his or her own view about the appropriate action to take. The priest or deacon should normally be told why his or her conduct is in question, and that a colleague or friend may be present during any discussions about it.

12. If the archdeacon considers that it should be dealt with on a disciplinary level, but no formal complaint is likely to be made by any one else, then the archdeacon should consider acting as complainant and making a complaint under the Measure; to avoid compromising the bishop’s position in any subsequent disciplinary proceedings, he or she should not discuss it with the bishop, except to notify the bishop what action has been taken.

13. Where no formal complaint under the Measure has yet been made but the bishop receives information about the conduct of a priest or deacon which, if true, would involve the welfare of any child or vulnerable adult, the bishop should ask the diocesan child protection or safeguarding officer to investigate it; these investigations would usually be in co-operation with other relevant bodies, and may need to take place initially without informing the priest or deacon.

AFTER FORMAL PROCEEDINGS ARE INSTITUTED; “Stage 2”

“The needs of the cleric in trouble must be handled fairly, promptly, and if at all possible, compassionately. But none of these concerns must be allowed to override the paramount concern of God’s people for proper “Under Authority” protection, and grounds for confidence in their leaders.” GS 1217 at 4.15

Overriding Objective of the Clergy Disciplinary Procedures

14. The overriding objective when dealing with formal allegations of clergy misconduct under the provisions of the Measure is to deal with r1 all complaints justly.

15. Dealing with a complaint justly includes, so far as reasonably practicable: (i) ensuring that it is dealt with in a way that is fair to all relevant interested parties, including the complainant, the respondent, the respondent’s family, the church, and members of the wider community, (ii) dealing with the complaint in ways which are proportionate to the nature and seriousness of the issues raised, (iii) ensuring that the complainant and the respondent are on an equal footing procedurally, (iv) ensuring that the complainant and respondent are kept informed of the procedural progress of the complaint, (v) avoiding undue delay, (vi) avoiding undue expense.

16. When any person or any body exercises any function in connection with clergy disciplinary matters, regard should be had to the overriding objective. The complainant and respondent are required to co-operate r2 with any such person or body to further the overriding objective. Any failure to co-operate may result in adverse inferences being made against a party at any stage of the proceedings.

Who exercises discipline?

17. Under the Measure it is the duty of the diocesan bishop to administer s1 discipline over clergy. It is also the responsibility of the bishop to provide care and support for clergy within his cure and for the laity. The performance of these duties may be delegated, but the diocesan bishop retains overall responsibility. Any disciplinary functions exercised under the Measure by others are exercised on the diocesan bishop’s behalf. Where the diocesan bishop has delegated disciplinary functions under section 13 of the Dioceses, Pastoral and Mission Measure 2007, a suffragan or assistant bishop may act for the diocesan bishop as appropriate.

Who can be disciplined under the Measure?

18. The Measure applies to all who are admitted to Holy Orders of the Church

11 of England, whether archbishop, bishop, priest or deacon. This includes s8 those who are actively involved in ministry as well as those who are not.

19. If a complaint is made under the Measure against a priest or deacon who has the bishop’s written permission to officiate (a “PTO” is normally given to retired clergy), the bishop can, nonetheless, terminate the PTO for misconduct without taking any action under the Measure (unlike a licence, which cannot be terminated for misconduct except by way of proceedings s8(2) under the Measure). In serious cases of misconduct, however, the bishop may choose to deal with it under the Measure, so that that person’s name may be included in the Archbishops’ List (see paragraphs 234 to 239).

20. The Measure also applies to clergy admitted to Holy Orders of another church but who have the Archbishop’s permission under the Overseas and Other Clergy (Ministry and Ordination) Measure 1967 to officiate in the Church of England.

21. Disciplinary proceedings can be instituted or continued even if the respondent in question resigns his or her position.

On what grounds can disciplinary proceedings be brought?

22. Disciplinary proceedings may only be brought where misconduct under the Measure is alleged to have occurred. A complaint should only be about alleged misconduct that is potentially sufficiently serious for referral to a bishop’s disciplinary tribunal. Proceedings under the Measure are not for the purpose of hearing grievances.

23. There are four grounds under the Measure for alleging misconduct, s8(1) namely:  the respondent has acted in breach of ecclesiastical law, s8(1)(a)  the respondent has failed to do something which he or she should s8(1)(b) have done under ecclesiastical law,  the respondent has neglected to perform, or been inefficient in s8(1)(c) performing, duties of his or her office,  the respondent has engaged in conduct that is unbecoming or s8(1)(d) inappropriate to the office and work of the clergy, but no complaint may normally be made about the lawful political opinions or But see s8(4) activities of a respondent (such as taking part in peaceful public marches or protests).

What is not covered by the Measure?

24. Allegations of misconduct against clergy relating to doctrine (i.e. what the clergy believe, and preach, teach or express) or ritual or ceremonial matters (i.e. how the clergy conduct public worship) do not fall within the s7, r3 provisions of the Measure, and any appropriate proceedings would have to be taken under the Ecclesiastical Jurisdiction Measure 1963.

12 What are acts or omissions contrary to Ecclesiastical Law? s8(1)(a) & (b)

25. These are not defined in the Measure but reference has to be made to the many principles of ecclesiastical law, which can be found in Acts of Parliament, Measures and Canons of the Church of England, statutory instruments, custom, and case law.

26. There are many duties imposed upon the clergy under ecclesiastical law. Failing to comply with any of those duties or doing something that is forbidden by ecclesiastical law could be a ground for alleging misconduct.

What is neglect or inefficiency? s8(1)(c)

27. Neglect or inefficiency can be misconduct for the purposes of disciplinary proceedings. They are not defined in the Measure, and it is not practical to give detailed guidance on what amounts to misconduct here as the circumstances could be infinitely variable. If sufficiently serious, conduct on a single occasion could be neglect of the duties of office under the Measure, but generally neglect or inefficiency will amount to misconduct only if they occur over a period of time.

What is unbecoming or inappropriate conduct? s8(1)(d)

28. The Measure does not define unbecoming or inappropriate conduct, but clergy in their conduct and everyday living are expected to be examples of what is acceptable in Christian behaviour. Members of the church and the wider community look towards the clergy to set, and conform to, appropriate standards of morality and behaviour.

29. In particular the clergy should live their lives in a way that is consistent with the Code of Canons (principally C26, C27 and C28). Canon C26 is particularly relevant. It requires the clergy to be diligent to frame and fashion their lives according to the doctrine of Christ, and to make themselves wholesome examples and patterns to the flock of Christ. Furthermore they are not to pursue unsuitable occupations, habits or recreations which do not befit their sacred calling, or which are detrimental to the performance of their duties or justifiably cause offence to others.

Who can start disciplinary proceedings?

30. There are three categories of those who are entitled to complain about a priest or deacon, namely, a Parochial Church Council (PCC), a s10(1) churchwarden, and any other person. A PCC and a churchwarden must be of a parish which has “a proper interest” in making the complaint and any other person who complains must also have “a proper interest”.

31. Examples of where the parish of a PCC or of a churchwarden has a proper interest in making a complaint would include where the alleged misconduct takes place within that parish, or is committed by the incumbent, or by a priest or deacon who is licensed to serve or is resident

13 in that parish. If a churchwarden, having made a complaint, ceases to hold that office before the complaint is finally determined, he or she is nonetheless entitled to pursue the complaint despite standing down as churchwarden.

32. As an officer of the bishop, a churchwarden has traditionally been entitled to draw the bishop’s attention to anything in the parish which requires the bishop’s intervention. However, this right must not be exercised in relation to any matters that are relevant to a complaint made by the churchwarden under the Measure, or relevant to a formal complaint that the churchwarden is considering making. Any formal complaint by a churchwarden against a priest or deacon must only be dealt with by using the proper procedures under the Measure and the Rules.

33. For a PCC to complain it must nominate someone (who need not be a member of the PCC) to make the complaint. At least two-thirds of its lay members must be present at a duly convened meeting of the PCC, and at least two-thirds of the lay members present must vote in favour of a s10(1)(a)(i) resolution that the proceedings be instituted.

34. Examples of others who may have a proper interest in making a complaint include anyone who personally observes or experiences the alleged misconduct, or the relevant archdeacon. A person making a complaint on behalf of anyone under a disability with a proper interest, or a parent or guardian making a complaint on behalf of a child with a proper interest, would also have a proper interest. Diocesan child protection or safeguarding officers have a proper interest when making complaints about alleged misconduct concerning children or vulnerable adults, and a friend or relative of a person who has been sexually abused will have a proper interest to make a complaint especially if asked to do so by that person.

Who can make complaints in respect of non-parochial clergy?

35. Special provisions apply in relation to cathedral clergy, chaplains of prisons, hospitals, universities, schools and extra-parochial institutions, armed forces chaplains, and ministers holding certain licences. Reference should accordingly be made to section 42 of the Measure to determine r91-96 who is entitled to lay a complaint against these members of the clergy, and forms 1d, 1e, 1f, 1g to whom the complaint is made.

Will help be available for complainants to make a formal written complaint?

36. Complainants may need help to make a written complaint and to prepare written evidence in support of their complaints. If not given the help they need they could be unfairly discouraged or precluded from making or pursuing their complaints.

37. Every diocese should be alert to this, and there should be a person designated to ensure that appropriate help is made available to any

14 complainant who needs it.

38. Appropriate help could include listening to a complainant and then transcribing the complaint and the evidence in support (using the complainant’s own words and phraseology so far as possible). Special help should be made available to any complainant with a disability.

39. Note: It is most important that any assistance and advice should be given by someone who is not otherwise involved in the particular complaint and who has no close ties with the respondent. If this principle is not observed the fairness of the proceedings could be called into question.

How is a complaint made?

40. A complaint must be made in writing and must contain a statement s10(1), r4 signed by the complainant declaring that the complainant believes the facts of the complaint are true. Complainants are expected as a general rule to make their complaints against priests and deacons using form 1a at appendix B1 of this Code, because it will be useful to help them set out all required information. Where the form is not used the complaint must nonetheless contain the same information as if form 1a had been used, and must include the declaration of truth. If a formal complaint does not set out all the required information, or omits the declaration of truth, it is good practice for the complainant to be sent form 1a, and invited to complete and sign it where necessary.

41. The complaint must specify the name and address of the complainant. No r4(2)(a)(ii) anonymous complaints will be considered under the Measure. A complainant may, however, request in the written complaint form that the complainant’s contact details should not be disclosed to the respondent, giving reasons for the request. Where such a request is made the complainant’s contact details will be withheld from the respondent and r4(3)-(5) deleted from all documents sent to the respondent, unless the registrar directs otherwise. If the registrar directs that the complainant’s contact details should be disclosed to the respondent the registrar will forthwith notify the complainant of this in writing, explaining why; the complaint will then lapse, unless the complainant informs the registrar within 14 days that the complainant wishes the complaint to proceed, even though the complainant’s contact details will not be withheld.

42. The complainant must indicate his or her entitlement to make the r4(2)(a)(iv) complaint (for example, as a person duly nominated by the PCC). Where nominated by a PCC, a certified copy of the appropriate resolution passed r4(2)(b) by the council, as required by the Measure, must be attached to the complaint.

43. The complaint must set out the grounds for complaining. That means that the complaint should state the nature of the alleged misconduct concerned, and summarise the facts of the matter, including details of all material r4(2)(a)(v) & (vi) dates and the identities where known of any people referred to in the complaint.

44. The complainant must provide written evidence to support the allegation. s10(3) This written evidence can be in the form of a statement or statements r6 signed by the complainant or other witnesses testifying in detail to the form 3 matters complained about. Letters or other material, such as photographs, may be submitted with the written evidence if relevant. A witness who provides a statement in support may request that his or her contact details should not be disclosed to the respondent, giving reasons for the request. Where such a request is made the witness’s contact details will be r6(3)-(5) withheld from the respondent and deleted from the copy of the witness statement sent to the respondent, unless the registrar directs otherwise. If the registrar directs that the witness’s contact details should be disclosed to the respondent the registrar will forthwith notify both the witness and the complainant of this in writing, explaining why; the statement will not then be used in the proceedings, unless the complainant informs the registrar within 14 days that the complainant wishes the statement to be used in support of the complaint, even though the witness’s contact details will not be withheld.

45. The evidence in support should normally accompany the written r7(1) complaint. The purpose of submitting evidence at this stage is to demonstrate that the complaint is made with good cause. The evidence should therefore go into details about the matters complained about and the relevant actions and conversations witnessed, and should specify material dates, times, locations, and identities where known of any people referred to. Where the maker of any statement does not personally know the truth of any matters referred to in the statement (for example because he or she was told about these things by someone else) then the statement should indicate what those matters are, and identify the source of the information or evidence. If evidence in support of the complaint is inadequate, then the complaint is likely to be dismissed by the bishop following preliminary scrutiny.

46. If the complainant is not in a position to send evidence or all the evidence at the time of making the complaint, then the complainant should give reasons in writing explaining why there is no accompanying evidence or why it is incomplete, and request the bishop to grant further time to supply r7(2) it. Permission to extend time for the submission of evidence in support is likely to be given only where the complainant can demonstrate that it has not so far been reasonably practicable to obtain the evidence. Justifiable reasons for failing to supply the written evidence at the time of making the complaint could include illness or incapacity.

47. If a formal complaint is made and signed by two or more people, they should nominate one of themselves to be the correspondent, so that letters r5 and notices need to be sent only to that complainant.

To whom is a complaint made?

48. A complaint against a priest or deacon (including archdeacons and all s10(2)(a) cathedral clergy) should be made to the bishop of the diocese where the s6(1)(a)

16 priest or deacon held office when the alleged misconduct occurred.

49. However, if a priest or deacon is alleged to have officiated as a minister in a diocese without authority a complaint should be made to the bishop of s6(1)(b) that diocese. If such a complaint is properly made then any other similar proceedings in a different diocese are to be discontinued, and no new s6(3) proceedings concerning the same matter can be started elsewhere. There can only be one set of proceedings under the Measure against a respondent in respect of any one matter.

50. Subject to paragraphs 48 and 49 above a complaint may also be made to the bishop of the diocese where the priest or deacon resided when the s6(1)(a) alleged misconduct occurred, unless similar proceedings are already under way elsewhere. Any proceedings brought on the basis of residence are to be discontinued if a complaint is properly made elsewhere in respect of the s6(3) same matter.

51. A list of addresses and contact details of the diocesan bishops for each province appears in appendix A to this Code.

When can a complaint be made?

52. A complaint must normally be made within one year from the date of the alleged misconduct or, if there is a series of acts or omissions which s9 together constitute the misconduct, within one year of the last incident. If a formal complaint is made after this period has expired, the bishop should inform the complainant that an application can be made to the President of Tribunals to extend the time for making the complaint.

53. This period of one year can be extended by the President of Tribunals if there is good reason why the complaint was not made within that time and s9, r8 provided the respondent would not suffer serious prejudice as a result of the delay. An application to the President should be made in writing on form 1c the form provided in the Clergy Discipline Rules 2005. A complainant may request in the form that the complainant’s contact details should not be disclosed to the respondent, giving reasons for the request. Where such a request is made the complainant’s contact details will be withheld from r8(1A)-(1C) the respondent and deleted from documents sent to the respondent in the course of the application, unless the President directs otherwise. If the President directs that the complainant’s contact details should be disclosed to the respondent the President will forthwith notify the complainant of this in writing, explaining why; the application will then lapse, unless the complainant informs the President within 14 days that the complainant wishes the application to proceed, even though the complainant’s contact details will not be withheld.

54. Before deciding whether to allow a complaint to be pursued out of time the President will consult both the complainant and the respondent. Justifiable reasons for failing to institute proceedings (i.e. failing to make a complaint) within the permitted time could include:  the complainant did not know, and could not reasonably be expected

17 to discover, either the material facts of the alleged misconduct or the identity of the respondent, or  the complainant has been suffering from a significant mental or physical illness or disability during the relevant period, or  where the making of the complaint followed the conclusion of criminal proceedings against the respondent, or  where the complainant (particularly if he or she was a child at the time of the alleged misconduct) has been manipulated or abused by the respondent.

55. Serious prejudice to a respondent caused by a delay in making a complaint could include one or more of the following circumstances:  where a material witness has meanwhile died or has become incapable of giving evidence through infirmity,  where a material witness is now overseas or cannot be traced after the lapse of time,  where material documents (whether electronic or otherwise) have been lost or destroyed,  where a long delay has made it significantly more difficult for witnesses to recall the events in question.

56. Note: If the respondent has been convicted in the criminal courts in respect of the misconduct, then the period of one year for making the complaint begins to run when any appeal against that conviction has been finally s9, s40(1) concluded, or when time for appealing has expired. This time limit of 12 months after conviction cannot be extended. The one year time limit for s9(2)-(4) making a complaint does not apply where the misconduct in question is conduct of a sexual nature towards (a) a child, or (b) an adult if the r14A President considers the adult was a vulnerable adult at the time of the s43(1) conduct.

What about disciplinary proceedings for employed clergy?

57. Some clergy are employed as chaplains by hospitals, schools, or prisons, or as staff with bodies such as diocesan boards of finance. Other clergy see r91, 93 & 94 may be licensed to serve as chaplains in Her Majesty’s armed forces. In those circumstances, as well as being subject to the discipline of the Church of England, they will also be subject to such separate disciplinary procedures as may apply under the terms of their employment or service, as the case may be. Where a complaint under the Measure is made about such clergy, it would normally be appropriate to wait for the outcome of any disciplinary action that is taken by the secular body, before the complaint is dealt with.

What happens if the complaint concerns criminal conduct?

58. Any criminal matters should be investigated and resolved by the relevant secular authorities (e.g. the police, child protection agencies, HM Revenue & Customs) before any related disciplinary proceedings under the Measure are resolved.

59. If a complaint is made to the bishop which concerns serious criminal conduct, but no-one has so far alerted the secular authorities, the bishop should encourage the complainant to report the matter to the appropriate authority. The bishop should also indicate that if the complainant does not do so, then it would be the bishop’s duty as a member of the public to report it.

60. If a complaint is made against a priest or deacon concerning matters in connection with which he or she has already been arrested on suspicion of committing a criminal offence, it would normally be appropriate to await the outcome of any criminal proceedings before dealing with the see r19 & s30 complaint.

What happens if the complaint relates to marital misconduct?

61. A formal complaint relating to alleged matrimonial misconduct against a priest or deacon who is respondent to a petition for divorce or judicial separation alleging adultery, desertion, or behaviour such that the petitioner cannot reasonably be expected to live with the respondent, should not normally be dealt with until the proceedings for divorce or see r19 & s30 judicial separation have been resolved.

How can time for dealing with a complaint be extended until the other related proceedings have finished?

62. Time for dealing with the complaint can be extended in two ways. First, it is open to the registrar to extend the period for sending the report to the s11(2) & s11(5) bishop following the preliminary scrutiny; this period can be extended r13, r19(1) until 28 days after the registrar is notified of the final outcome of the other proceedings. Alternatively, after he has received the registrar’s report, the s12(2) bishop can extend the period for determining which course to pursue to r18, r19(2) deal with the complaint.

Preliminary scrutiny of the complaint

Confirming whether a formal complaint is being made

63. When a complaint is received which is not set out in the form at appendix B1, the bishop through a member of his staff should take steps to ascertain from the person complaining whether it is intended to be a formal complaint for disciplinary purposes; if it is so intended, it is good practice for the complainant to be invited to resubmit the complaint using the form s10(3) at appendix B1 and to be advised that written evidence (if not so far r4, r6, r7 submitted) must be provided to support any formal complaint.

64. If the complaint is not intended by the person complaining to be a formal complaint for disciplinary purposes, it should be dealt with as a stage 1 matter (see paragraphs 9 to 13 above).

19 Acknowledgment of the complaint

65. When a formal complaint is made, the bishop should acknowledge in writing to the complainant that the complaint has been received, and refer r9 it to the diocesan registrar (“the registrar”) within 7 days. If the bishop is absent when the complaint is received, a person authorised by the bishop should acknowledge receipt, and inform the complainant that it will be seen by the bishop when the bishop returns.

66. The acknowledgment from the bishop should: r9(1)  state the date of receipt of the complaint  explain that the complaint will be referred to the registrar for preliminary scrutiny, and that the registrar will normally be expected to report back to the bishop within 28 days  briefly summarise the bishop’s options under section 12 of the Measure on receiving the registrar’s report  indicate that the bishop hopes to decide the appropriate course to take within 28 days of receiving the registrar’s report, and will notify the complainant in writing of the decision  state that the respondent will be informed of the complaint  indicate that the complainant and respondent should not discuss the complaint. The pro-forma letter appended at B3 to this Code may be used by the bishop to acknowledge receipt of the complaint. However, where the complaint alleges criminal conduct, the acknowledgment should inform the complainant that the complaint may not be dealt with until any connected criminal proceedings have been concluded.

What is the role of the registrar?

67. The registrar’s role is to produce a report advising the bishop about the status of the complainant (i.e. whether he or she is entitled to make the s11 complaint under section 10 of the Measure), and whether in the registrar’s r10-14 view there is sufficient substance in the complaint to justify proceeding with it.

68. Sufficient substance means that, on the face of the complaint and the written evidence in support :

 the allegations, if proved, would amount to misconduct coming within one or more of the grounds listed in paragraph 23 above, and  the issues raised are not trivial but justify further serious consideration being given to the complaint.

69. Registrars may be approached for advice by PCC’s, churchwardens or others who have made a formal complaint, or are thinking of making a complaint. Clergy who are respondents to a complaint may also ask registrars for advice. A registrar should not, however, give legal advice in relation to a complaint to anyone except the bishop, because of the risks of a conflict of interest which would otherwise arise. The registrar’s

20 staff should be alert to such risks. Consequently, if a complainant, PCC, churchwarden or respondent contacts the registrar’s office, the registrar and staff must not give them advice about the merits of any particular complaint or potential complaint, but should refer them elsewhere for such advice (e.g. to a registrar of a neighbouring diocese). It would, however, be appropriate for staff simply to give information about the procedures under the Measure for making a formal complaint, and to supply an enquirer with any explanatory literature.

Can the registrar delegate?

70. Any or all of the registrar’s functions may be delegated to others as the s11(6) registrar thinks fit, (but this would not affect the time limit imposed under section 11(2) of the Measure for sending the report to the bishop). Being acquainted with a complainant or respondent through previous professional dealings as registrar would not normally be a reason for delegating to another person. But where a registrar is a close personal friend of one of the parties, or has any other conflict of interest, the registrar can ask someone else, for example the registrar of another diocese, to carry out the preliminary scrutiny.

Who notifies the respondent about a complaint?

71. Within 7 days of the registrar receiving the complaint and written evidence in support, the respondent will normally be informed in writing about the s11(1), r10 complaint, sent a copy (with contact details of the complainant or witness deleted where appropriate – see paragraphs 41 and 44 above), and r10(2) & (3) notified of the registrar’s function and the date when the registrar expects to submit the written report to the bishop. The registrar should include a letter from the bishop explaining about the care and support that will be provided on behalf of the bishop for the respondent (the bishop may use the pro-forma letter at appendix B5). In exceptional circumstances the registrar may for no longer than is necessary delay notifying the r10(2) respondent that a complaint has been made.

72. A respondent is entitled to know the identity of anyone who makes a complaint, but should be told not to discuss the complaint with the complainant.

73. Once a formal complaint is made it is inappropriate for the respondent to talk to the complainant about it; the complaint must be resolved through the formal disciplinary procedures. Any attempt by the respondent, either personally or through others, to put pressure on a complainant to withdraw a complaint is improper. That does not mean that the respondent cannot talk to the complainant about other matters that might need to be discussed, for example, when the complainant is a churchwarden.

74. The respondent should be informed in writing by the registrar of the limited purpose of the preliminary scrutiny. The respondent should also be informed that there is no need to make any submissions at this stage in response to the complaint, but that there will be an opportunity later to

21 respond in detail to the complaint if it proceeds. The pro-forma letter at r10(1) appendix B4 may be used by the registrar for this purpose.

Help and advice for respondent clergy

75. Following a complaint the respondent should be encouraged to seek help and advice. Every diocese should identify an appropriate person to offer practical help and advice, as well as identify where the respondent may obtain legal advice.

76. Note: A respondent should not ask for legal advice from the registrar for the diocese where the complaint has been made. This is to avoid a conflict of interest – because the registrar advises the bishop (especially during the preliminary scrutiny), it is inappropriate for the registrar to advise anyone else in relation to the same complaint. A respondent can, however, seek legal advice from a registrar for a different diocese.

Consulting the complainant

77. The registrar should consult the complainant to clarify anything which s11(1), r11 needs to be clarified relating to the complaint. This should normally be done in writing or by e-mail, with copies of all correspondence sent to the respondent. It is not the function of the registrar to carry out a detailed investigation into the complaint (see paragraphs 67 and 68 above), and any questions raised by the registrar should be for the sole purpose of clarification.

78. The gist of any oral communications with the complainant (whether over the telephone or in person) should be recorded in written memoranda, and copied to the respondent.

79. On no account should pressure be put upon a complainant by a registrar to r11 withdraw or modify a complaint.

80. Where a complainant claims to be nominated by a parochial church council, the registrar should check that a certified copy of the resolution in favour of the institution of proceedings and of the nomination of the complainant has been submitted to confirm that the complainant has been duly nominated in accordance with section 10(1)(a)(i) of the Measure. Where a complainant purports to act in the capacity of churchwarden, the r4(2)(b) registrar should make appropriate enquiries of the diocesan office to confirm the status of the complainant.

81. If the registrar or the registrar’s staff believe or suspect that the complainant requires assistance in making the complaint, the registrar or a member of staff should inform the complainant about where assistance can be obtained (see paragraph 37 above).

What if more time is needed for the preliminary scrutiny?

82. Complaints should be dealt with without undue delay. For this reason

22 time limits are imposed under the Measure for certain stages in the disciplinary procedure to be completed.

83. The registrar has 28 days from date of receipt of the complaint to consider it, make enquiries and communicate with the parties as appropriate, and s11(2), r12(1) submit the report to the bishop. If this time is insufficient the registrar may extend it once only where justified in the particular circumstances of the case. Before doing so, the registrar should inform the parties in writing that further time is needed and the reasons for this, and invite them s11(5), r13(1) to comment on whether time for the report should be extended. In deciding whether to extend the time for submission of the report, and if so, by how long, the registrar should take the views of the parties into account. Registrars should, whenever possible, strive to keep within the initial 28 day period.

What should be in the registrar’s report?

84. The registrar’s report should advise on the following areas:  whether the complainant has a proper interest in making the complaint s11(1)(a)  an analysis of whether, in the registrar’s view, the complaint with the evidence in support has sufficient substance to justify disciplinary s11(1)(b) proceedings. The purpose of the report is to advise the bishop, but it is the bishop who makes the decision about these matters. When the report is sent to the bishop the registrar should attach to it the complaint and the evidence in r12(2) support. The registrar should inform the bishop in a separate letter whether the respondent is subject to a conditional deferment or conditional discharge, see s14 & s25 or appears on the Archbishops’ list under section 38 of the Measure and, if so, in what terms. A copy should be sent to the respondent.

85. If, contrary to the advice that submissions are not necessary at this stage r10(1)(c) (see paragraph 74 above), the respondent sends the registrar a response to the complaint, the registrar should send it on to the bishop without comment. The registrar should acknowledge in writing receipt of the response, and inform the respondent that it has been forwarded to the bishop and that there will be an opportunity for the respondent to reply in full if the bishop does not dismiss the complaint.

86. Whilst it is not the function of the registrar to give in the report recommendations or guidance to the bishop on the appropriate course of action to take to deal with the complaint, the registrar, as the bishop’s legal advisor, may at any time advise the bishop on any matters of law or procedure relating to the complaint.

87. If more than one complaint is made by a complainant about the same respondent, the registrar’s report should normally deal with all those r14(1) complaints, even if they concern separate and unconnected incidents.

88. If two or more complainants complain separately about the same incident(s) involving the same respondent, the registrar should normally r14(3)

23 prepare a single report to deal with all complaints.

89. If two or more complainants complain separately about different incidents involving the same respondent, the registrar should normally prepare separate reports in respect of each complainant.

The Bishop’s role

90. It is a fundamental principle of clergy discipline that the diocesan bishop s1 at all times is responsible for administering discipline over the clergy within the bishop’s cure. Where others perform any disciplinary function For the exercise of they do so only on the bishop’s behalf. disciplinary functions when the see is vacant, see 91. However, if the bishop has, or may have, a conflict of interest in relation s14 Dioceses, to a complaint (for example, where a complainant, respondent, or witness Pastoral and is a relative or a close personal or professional friend of the bishop, or Mission Measure where the bishop has been closely involved at the informal stage - i.e. 2007 “stage 1” - or has already been involved when determining an appeal by an employed respondent against a decision of the diocesan board of finance), then the bishop should not personally deal with it. The bishop should in such cases delegate the disciplinary functions to a suffragan or assistant s13 Dioceses, bishop. This should happen even if the bishop believes that any personal Pastoral and interest or involvement would not affect his judgment or way of dealing Mission Measure 2007 with a complaint – it is important that justice is perceived to be done, as well as actually done. This does not mean that the bishop needs to delegate simply because the bishop has prior knowledge of a problem having been kept informed about it as it develops. A bishop ought to be reasonably familiar with any difficulties there might be in the diocese and with its clergy. Nevertheless, there would need to be delegation to a suffragan or assistant bishop if, before a formal complaint is made, the bishop has previously taken action or given any indication that suggests he could already have made up his mind about the complaint.

92. Where a bishop delegates the disciplinary functions in a case, the bishop should notify the respondent, complainant and the registrar of the reasons for doing so.

93. To avoid any delays in dealing with a complaint whilst the consent of the s13(8) Dioceses, diocesan synod to delegation is sought, bishops should as soon as Pastoral and reasonably practicable after taking office sign a single instrument with the Mission Measure 2007 consent of the diocesan synod for disciplinary functions to be delegated in any case where the bishop certifies in writing that there is a conflict of interest.

94. Where there is conflict of interest for the bishop, but there is no suffragan or assistant bishop to delegate to, the bishop should refer the complaint to s17(1), r28 the Designated Officer for a formal investigation, unless the registrar’s report following preliminary scrutiny advises the bishop either that the complainant does not have a proper interest or that there is not sufficient substance in the complaint to justify proceeding with it. In those

24 circumstances the bishop could dismiss the complaint under s11(3) of the r15 Measure; the complainant would have a right to request a review by the s11(4), r16 President of Tribunals of the bishop’s decision.

95. For clergy whose parish is under the oversight of a Provincial Episcopal Visitor the diocesan bishop remains the focus of discipline, but may consult the Provincial Episcopal Visitor in such instances as the diocesan bishop thinks fit.

96. The bishop, when administering discipline, should have regard to the separate interests of the complainant, the respondent, the respondent’s family, the local church and community, and the wider church and community.

What care and support will be given during disciplinary proceedings?

97. The well-being of the whole Church in the diocese is the bishop’s responsibility, and the bishop is the chief pastor of all within that diocese, Canon C18 whether laity or clergy. Consequently, the bishop has the duty of pastoral care for both complainant and respondent, as well as the parish.

98. Since the bishop is also responsible for administering discipline over clergy in the diocese it is all the more important that the bishop should take care not to be seen to be taking sides. This means the bishop should not personally give pastoral care to anyone connected with the disciplinary proceedings, unless the bishop delegates the disciplinary function to a suffragan or assistant bishop. This is in the interests of fairness to both parties, because otherwise there is a risk that the bishop’s impartiality could appear as a result to be compromised. However, the bishop should ensure that appropriate care and support is provided for all those who need it, and the bishop should explain it is given expressly on the bishop’s behalf.

99. The bishop should be alert to the needs of the respondent and the respondent’s close family for care and support. This may be needed, and should be made freely available, from the moment a complaint is notified to the respondent and throughout the course of disciplinary proceedings, including after the proceedings have been concluded. When the registrar informs the respondent that the complaint has been made, the registrar s11(1), r10(1) should include a letter from the bishop explaining about the care and support that will be provided on behalf of the bishop for the respondent. The pro-forma letter at appendix B5 may be used by the bishop for this purpose. If the bishop becomes aware that an application has been made to the President for permission to make a complaint out of time, the bishop should ensure that appropriate pastoral support is available for the respondent.

100. A rural or area dean, other experienced clergy including retired bishops or retired archdeacons, or an appropriate lay person could be suitable to provide care and support in place of the bishop, provided they are not involved with the complaint. In some circumstances a suffragan bishop or

25 archdeacon may be appropriate provided there has been no prior involvement in the complaint or the problems behind the complaint. The bishop will use his discretion and judgment when deciding in any given case whom to offer to the respondent to provide care and support, but any appointment must be acceptable to the respondent. It is important that the respondent must be able to trust the person appointed. If the respondent is not content with the person proposed by the bishop then the bishop should seek to appoint another person who would be acceptable. It should be explained to the respondent by both the bishop and the person providing care and support on the bishop’s behalf that all pastoral discussions are completely confidential so there will be no reporting back to the bishop about what has been said (unless the respondent expressly wants the bishop to be informed).

101. The bishop should ensure as appropriate that suitable support is offered on his behalf to others who are involved in the complaint (including the complainant, PCC, and churchwardens), but such support must only be given by those who are not otherwise concerned in the disciplinary proceedings.

102. As explained in paragraph 98 above, whilst the bishop is dealing with a complaint, the bishop must not personally give pastoral support to a complainant or respondent. That does not mean that the bishop is cut off from them and unable to meet either of them. On the contrary, the bishop should indeed meet the complainant or respondent if it could help the bishop decide on the appropriate course to determine the complaint. The purpose of the meeting, however, will be to discuss the complaint, not to give personal pastoral care and support or to put the parties under any pressure to adopt a certain course of action (see, for instance, paragraphs 116, 127 & 146 below). A member of the bishop’s staff should attend and record the matters discussed. The bishop should bear in mind at all times the importance of being perceived by both the complainant and the respondent to be acting fairly and impartially.

What can the bishop do on receipt of the registrar’s report?

103. The bishop is entitled, as the bishop thinks fit, to accept or reject the s11(2) registrar’s views set out in the report following on from the preliminary scrutiny. Having considered the registrar’s views contained in the report, it is the decision of the bishop alone as to which course to pursue under sections 11(3) or 12 of the Measure.

Dismissal by the bishop of a complaint under section 11(3)

104. Having considered the registrar’s report following preliminary scrutiny, r15 the bishop may, within 28 days of receiving it, dismiss the complaint under section 11(3) of the Measure. Such action would be appropriate where the bishop is satisfied that:  the complainant does not have a proper interest in making the complaint, within the meaning of section 10 of the Measure, or  there appears to be no sufficient substance in the complaint to justify

26 proceeding with it; this would apply if the complaint were trivial, or if the bishop forms the view that the alleged misconduct, if true, would probably not be grave enough to merit a formal rebuke under the Measure, or it could be dealt with more appropriately under non- disciplinary procedures outside the Measure.

105. The bishop should have regard to the contents of the registrar’s report, but must exercise his own judgment in deciding on the appropriate course of action, and he cannot delegate making the decision to anyone else (unless there is a conflict of interest, see paragraphs 91 to 93 above).

106. Both the complainant and respondent should be sent notice in writing of r15(1) the dismissal of the complaint under section 11(3) of the Measure, together with a copy of the registrar’s report. A summary of the bishop’s reasons for dismissing it should be included in the notice, together with an explanation that the complainant has the right to ask the President of r15(2) Tribunals to review the bishop’s decision.

Complainant’s right to request a review of a dismissal under s11(3)

107. A complainant is entitled to request the President of Tribunals in writing to review a dismissal under section 11(3) of the Measure. The request should s11(4), r16 be made within 14 days of receipt of the notice of dismissal, and should set out the reasons for challenging the bishop’s decision, and be accompanied by a copy of the complaint and evidence in support, the registrar’s report and the bishop’s notice of dismissal. A form is provided by the Clergy Discipline Rules 2005 for complainants to use, and will help form 4 them to set out the required information. No new or further evidence may r16(2) be submitted by the complainant with a request for a review. The President will notify the bishop and the respondent that the review has been requested.

108. The President will consider the registrar’s report and the bishop’s notice of r16(4) dismissal within 28 days. The President’s role is to review the bishop’s decision. No fresh or new evidence will be considered by the President when reviewing the bishop’s decision. The President can uphold the dismissal, reverse it, or remit the complaint back to the bishop with a direction that the bishop is to reconsider the dismissal.

109. The decision to dismiss the complaint can be reversed or remitted back to the bishop for reconsideration only if the President is satisfied that the s11(4) bishop was plainly wrong, i.e. that the bishop’s decision was not within the range of reasonable decisions. It is not an appeal on the merits, and the President will not simply substitute his or her own view for that of the bishop. If the President does reverse the bishop’s decision then the bishop will be directed to deal with the complaint by considering the appropriate r16(4) course of action to pursue under section 12 of the Measure.

The respondent’s answer to the complaint

110. When the complaint is not dismissed under section 11(3) or the President

27 under section 11(4) reverses a dismissal, the respondent should be notified in writing that the complaint has not been dismissed, sent a copy of the r17(1) registrar’s report, and requested to submit a written answer to the complaint within 21 days. The answer should be in the form at appendix B2 or in a document which is similar, and should state which matters are form 2 admitted and which are contested, and should be accompanied by written r17(2)(c) evidence in support. This written evidence can be in the form of a r17(3) & (4) statement or statements signed by the respondent or other witnesses form 3 testifying in some detail to the matters complained about. Letters or other material, such as photographs, may be submitted with the written evidence if relevant. A witness who provides a statement in support may request that his or her contact details should not be disclosed to the complainant, giving reasons for the request. Where such a request is made the witness’s contact details will be withheld from the complainant and deleted from the copy of the witness statement sent to the complainant, unless the registrar directs otherwise. If the registrar directs that the witness’s contact details should be disclosed to the complainant the registrar will forthwith notify both the witness and the respondent of this in writing, explaining why.

111. If the respondent admits any misconduct, details should be given in the answer of any matters relied upon by way of mitigation.

112. A copy of the answer and evidence in support should be sent to the r17(6) complainant by the bishop.

What courses can the bishop take?

Can the bishop suspend whilst the complaint is considered?

113. If, having received the registrar’s report, the bishop decides not to dismiss the complaint under section 11(3) of the Measure, the bishop may consider suspending the respondent from exercising or performing any ministerial s36(1) right or duty without permission whilst the complaint is considered r60-66 further. A suspension should be imposed only if necessary. See further at paragraphs 216 to 230 below.

How long can the bishop take to decide what to do?

114. The bishop should attempt to decide on the appropriate course of action within 28 days of receiving the registrar’s report. If more time is needed s12(1) the bishop should consult the complainant and respondent to ascertain their views on the extension of time, but their consent is not needed for s12(2), r18 any extension of time. When the bishop decides to extend the period of time for considering what course to pursue he will inform the complainant and the respondent in writing.

Who can the bishop meet when deciding what to do?

115. When considering what action to take, the bishop may meet or interview separately the complainant and the respondent. The bishop may also meet or interview any other person who may be able to assist the bishop in

28 deciding how to proceed. The complainant should be informed in advance of the reason for a meeting or interview, and should bring a friend or an advisor (and must be encouraged to do so). The respondent should likewise be informed in advance of the reason for the meeting or interview with sufficient time to prepare for it, and should bring a colleague, advisor or friend (and must be encouraged to do so). Whenever the bishop meets a complainant, respondent or any other person, a member of the bishop’s staff should attend and record the matters discussed. A copy of the note of the meeting should be sent promptly after the meeting to the persons who were present at it.

116. At no stage should any pressure be put on a complainant to withdraw or modify a complaint. Equally, no pressure should be put on a respondent, and a bishop should not engage in “plea bargaining” with the respondent, (i.e. the bishop should not accept an admission by the respondent to a lesser allegation of misconduct on condition that a more serious complaint is not proceeded with).

Decision to take no further action

117. A decision to take no further action under the Measure is suitable where s12(1)(a), s13 the misconduct is admitted by the respondent but is of a technical or minor nature, or where, having seen the respondent’s answer and evidence in support, the bishop decides there was clearly no misconduct.

118. This is also suitable where the bishop considers there may have been misconduct, but that the misconduct is only of a technical or minor nature, and would not merit any sanction under the Measure being imposed taking into account any mitigating factors.

119. A decision to take no further action should be put into writing by the s13(2), r20 bishop setting out the reasons and sent to both the complainant and respondent.

120. The letters to the complainant and the respondent should explain the r20 complainant’s right to refer the bishop’s decision to take no further action to the President of Tribunals for a review. The letters should also explain s13(3) the limited nature of the review. The pro-forma letter appended at B6 can be used by the bishop as the letter to the complainant.

121. Any such reference by the complainant to the President for a review r21 should be in writing, and should be sent within 14 days of receipt of the bishop’s decision. The reference should be accompanied by the bishop’s written decision, plus a copy of the complaint and the respondent’s answer and evidence in support of each, and the registrar’s report. The reference should explain why the complainant believes the bishop was wrong. A form is provided by the Clergy Discipline Rules 2005 for complainants to form 5 use, and will help them set out the required information.

122. Within 28 days of receipt of the reference the President will consider the r22

29 complainant’s request and the documents submitted with it. The President’s role is to review the bishop’s decision. No fresh or new r21(4) evidence will be considered by the President. The President can uphold the bishop’s decision, overrule it, or remit the matter back to the bishop with a direction that the bishop is to reconsider the decision to take no further action.

123. The bishop’s decision to take no further action can be overruled or remitted back to the bishop for reconsideration only if the President is s13(3), r22 satisfied that the bishop was plainly wrong. Where the President overrules the bishop the President has a discretion to direct the bishop to attempt such other courses permitted under section 12 of the Measure as the President considers appropriate (namely, conditional deferment, reference to conciliation, penalty by consent, or formal investigation).

124. If the bishop considers on the evidence that there has been misconduct, but decides to take no further action on the complaint under the Measure because it is not of sufficient seriousness, the bishop may nonetheless advise and warn the respondent in writing as to future behaviour. A copy of the advice and warning should be kept in the respondent’s personal file (known as the blue file) for an appropriate period. No record of it will be see s38 entered in the Archbishops’ list.

Decision that there should be a conditional deferment

125. Conditional deferment is only available when the respondent consents to it s12(1)(b), s14 as a course of action. Before the respondent consents, the bishop must explain the meaning and effect of a conditional deferment and be satisfied that the respondent understands fully the implications.

126. A conditional deferment means that the complaint is kept on file in the s14(2) diocese for a period of up to 5 years (the length of time is in the bishop’s discretion). No other action is taken in respect of the complaint unless a s14(3) further complaint of misconduct is made against the respondent within that period of deferment.

127. No pressure should be put upon a respondent to consent to a conditional deferment. The passage of time may make it difficult to investigate a complaint at a later date, so in practice a conditional deferment is most likely to be used where a respondent admits the misconduct, but the misconduct is out of character and unlikely to be repeated, and does not warrant removal from office or a period of prohibition.

128. Having obtained the respondent’s consent in writing to a conditional form 6, r23 deferment, the bishop must put the decision into writing, setting out the r24 period of deferment, and informing the respondent that if a further complaint is made during that period and proceeds by way of conciliation, penalty by consent or formal investigation, then the original complaint may be dealt with alongside the further complaint.

129. A copy of the bishop’s written decision together with the complaint and

30 the respondent’s answer, if any, should be sent to the archbishop; the r25 conditional deferment will be noted by the provincial registrar. A copy of the bishop’s written decision should be given to both the complainant and the respondent, together with a written explanation of the meaning and effect of a conditional deferment.

130. It is the duty of the registrar to keep and maintain an accurate record of r25(1)(c) conditional deferments; the entry should contain a summary of the nature of the complaint with relevant dates and set out the period of deferment. The registrar should also keep all relevant papers relating to that complaint. Only diocesan bishops and registrars have access to records of r25(2) conditional deferments.

131. The complainant has no right of appeal or review in respect of the bishop’s decision to impose a conditional deferment.

Decision in favour of conciliation

132. Conciliation can be particularly appropriate when pastoral or personal s12(1)(c), s15 relationships have been damaged and there appears to be an opportunity for them to be restored through constructive dialogue. It may also be appropriate where it appears the complainant is seeking recognition of error by the respondent and an apology. In these circumstances conciliation offers the hope of re-establishing trust and confidence.

133. Conciliation is a voluntary and confidential process in which an impartial third party (the conciliator) helps the complainant and the respondent to achieve agreement on how the complaint can be resolved.

134. For a conciliation to be successful, both sides have to understand the process and take part willingly. Before deciding that conciliation is appropriate the bishop should explain to both sides the nature of conciliation hearings and invite them to make representations as to s15(1), r26(1) whether or not conciliation should be pursued. Only if both sides agree s15(2) can the bishop appoint a conciliator.

135. The bishop should emphasise that:  agreeing to a conciliation is not a sign of weakness by a party, nor an admission of guilt,  the conciliator’s function is not to judge or decide the issues, but to help the parties achieve an agreement,  parties will not be pressurised by the conciliator into making an agreement,  conciliation is an attempt to bring the parties together so that they themselves can agree on a suitable outcome of the complaint.

136. Conciliation may be particularly appropriate where the complaint of misconduct is indicative of a breakdown in the underlying relationship, especially the relationship between a priest and the PCC or a churchwarden.

31 137. Not all disputes are suitable for conciliation, for instance, conciliation is unsuitable for any complaint where the bishop considers that the appropriate penalty, if the complaint is proved, would be prohibition (including limited prohibition) or resignation.

138. If the parties agree to a conciliation, the bishop will need to appoint a conciliator (or joint conciliators, if appropriate). It is of fundamental importance that the conciliator should be impartial, acceptable to both parties, and professionally qualified. Before making the appointment the r26(2) bishop should notify the parties in writing of the name or names of possible conciliators, briefly summarise their suitability, experience and qualifications for the task, and invite the parties to indicate within 14 days which names they would each agree to be appointed. If both parties agree on a person to be appointed, then the bishop should appoint the conciliator in question, provided the bishop has no reason to question that person’s s15(3) impartiality.

139. There is a variety of people whom the bishop can appoint to be a conciliator. Experience shows that dioceses throughout the country use a wide range from within the church to mediate in all kinds of other disputes. Archdeacons, rural deans, retired clergy, and diocesan staff, may all be suitable, provided they are professionally qualified as conciliators; furthermore, there are no fees payable for using their services. Outside agencies can provide trained conciliators but they normally charge fees; any fees charged would normally fall for the diocesan board of finance to pay.

140. On appointing a conciliator in relation to a complaint the bishop should r26(3) send the conciliator copies of all the relevant papers in the case.

141. Conciliation processes can be flexible, to suit the needs of the case. If conciliation is achieved, the conciliator should reduce the agreed points into writing and obtain the signatures of the complainant and the r26(6) respondent.

142. If conciliation is achieved, the conciliator submits a written report to the s15(4), r26 bishop with recommendations based on the parties’ agreement on how to resolve the complaint. The report should be submitted within three months of the conciliator’s appointment, although this can be extended if it s15(4)(a), r26(5) seems desirable to the conciliator and the parties agree. The bishop then notifies the parties in writing that he accepts the agreement and that he will pursue any agreed course (provided he could have pursued that course r26(6)(b) under section 12 of the Measure if he had not instead directed the conciliation attempt).

143. If a complainant and respondent are unable to agree that a complaint should be referred to a conciliator, or cannot agree on who the conciliator should be, the bishop will proceed with one of the other courses under s15(5), r26(9) section 12 of the Measure (namely, take no further action, conditional deferment, penalty by consent, formal investigation).

32 144. If conciliation is not successful, but the parties agree that further exploration with a different conciliator may be fruitful, the bishop may s15(4)(b), r26(7) appoint another conciliator. If they cannot agree to further conciliation, the bishop shall proceed with one of the other courses under section 12 of s15(5), r26(8) the Measure.

Decision to impose penalty by consent – general considerations

145. A penalty by consent can only be imposed where the respondent admits s12(1)(d), s16 the validity of the complaint or part of the complaint. Consequently, it should not even be raised as a suitable option with the respondent until he or she has admitted that the complaint or part of the complaint is valid.

146. No pressure should be used by the bishop to obtain either the respondent’s admission to the complaint, or the respondent’s consent to the appropriate penalty. The bishop’s view that a complaint may be clearly made out and requiring an obvious particular penalty must not lead to an overbearing approach towards the respondent.

147. The bishop should bear in mind that the respondent may feel in a weakened or vulnerable position, and liable to agree to matters which may be regretted after considered reflection. The bishop should also bear in mind that there may be mitigating circumstances relating to the misconduct, which should be explored in full with the respondent before any decision is made. The respondent should be encouraged to take legal advice before consenting to a penalty.

148. It is for the bishop to indicate an appropriate penalty, and for the respondent to accept or reject it. It is unfair and inappropriate to require the respondent to propose a suitable penalty.

149. All penalties set out in section 24 of the Measure can be imposed by consent, namely, prohibition for life, limited prohibition, removal (or r27(2) resignation if by consent), revocation of licence, injunction, or rebuke.

150. Plea-bargaining between the bishop and the respondent (see paragraph 116 above) must form no part of the process of considering and imposing a penalty by consent.

151. Before the bishop imposes a penalty by consent, the complainant and s16(1), r27(3) respondent must be given an opportunity to make written representations. The bishop should notify them of the penalty that is in mind, together with any mitigating circumstances that the bishop has found persuasive, and invite them to make written representations in response within 14 days. Before confirming the penalty the bishop should have regard to any such representations.

152. The respondent’s consent to a penalty must be given in writing in a form r27(4), form 7 for that purpose.

153. Within 7 days of receiving the respondent’s written consent to the penalty

33 (provided it is not resignation or prohibition), the bishop must send to the r27(4) respondent written confirmation of the agreed penalty. Within 14 days of sending the written confirmation to the respondent, the bishop should notify the complainant, the archbishop of the relevant province and the r27(6) & (7) diocesan registrar in writing of the penalty imposed.

154. If the respondent does not consent to a proposed penalty, the bishop must s16(3), r27(8) refer the complaint to the Designated Officer for a formal investigation. Where a complaint is referred to the Designated Officer, it is still open to s16(3A), r27(9) the bishop and respondent to agree a penalty by consent if the respondent at any stage in writing admits misconduct. Where a penalty by consent is agreed no other steps will be taken in the complaint proceedings.

Decision to impose penalty by consent – resignation or prohibition

155. There is an important difference between a resignation offered unconditionally in response to a complaint, and a resignation that takes effect as a penalty by consent under the provisions of section 16 of the Measure. A respondent is entitled to resign when a complaint is made and the bishop cannot refuse to accept the resignation. However, the bishop should warn the respondent that the circumstances of the resignation will be entered in the Archbishops’ list under section 38(1)(d) of the Measure, and furthermore that unless the resignation takes effect as a penalty by consent under the Measure in respect of admitted misconduct, the complaint process will normally continue and a penalty could still be imposed.

156. Similarly, if a priest or deacon resigns before a complaint is made, any later complaint relating to pre-resignation conduct should be determined in disciplinary proceedings in due course. If the misconduct in question is adjudged to warrant prohibition or any other penalty, such a penalty may still be imposed notwithstanding the earlier resignation.

157. Where resignation or prohibition is contemplated by the bishop as the

appropriate penalty by consent, the respondent must be given sufficient

time, which should be up to 14 days, to consider all the consequences

before agreeing to it. In particular the respondent must be given the

opportunity to consult his or her spouse (if married), other close family

members, and his or her legal advisor, and be encouraged to do so. It is

important that decisions about resignation should not be made in the heat

of the moment when a respondent may be feeling under stress.

158. Where the respondent agrees to accept prohibition for life, or resignation, there is an automatic 7-day moratorium (i.e. a “cooling off period”) during s16(2), r27(5) which the respondent is entitled as of right to withdraw consent to the penalty. The penalty will only take effect at the end of the 7-day period if the respondent has not withdrawn consent in writing. If consent is withdrawn then the bishop must refer the complaint to the Designated s16(3), r27(8) Officer for a formal investigation.

159. If resignation is contemplated as a penalty by consent, the bishop must be

34 personally satisfied that it is the appropriate penalty and not merely expedient. Resignation may be too weak a response where prohibition is called for, and too harsh a penalty where a lesser sanction would be suitable (such as an injunction).

160. When the 7-day “cooling off” period has expired the bishop should write to the respondent confirming the agreed penalty. In the case of r27(5)(b) resignation, no deed or letter of resignation from the respondent is required to implement it, because the respondent will already have signed a form form 7 (provided in the Clergy Discipline Rules 2005) agreeing to the penalty of resignation.

161. Within 14 days of sending the written confirmation to the respondent the bishop should give written notice of the penalty to the complainant, the r27(6) &(7) archbishop of the relevant province, and the relevant diocesan registrar.

Decision in favour of formal investigation

162. This option is intended to be used only for those cases which cannot be s12(1)(e), s17 satisfactorily dealt with by any other means. This will include cases where r28 the respondent denies a complaint of substance (so taking no action is not a proper option under section 12(1)(a)), or where conciliation has been rejected or failed, or where the respondent will not consent to the penalty which the bishop considers to be appropriate.

What happens if there is a criminal conviction?

163. If a priest or deacon is convicted in England and Wales of any criminal offence which is not a summary offence, or receives a sentence of s30(1) imprisonment (including a suspended sentence) the bishop may remove r67-69 that person from office or impose a prohibition order (either for life or for a limited period) without further proceedings. Under the Measure the s30(3) bishop has a two-year period within which to act from the date the sentence of imprisonment becomes conclusive, but the bishop should consider the matter and take action as soon as reasonably practicable. A sentence of imprisonment becomes conclusive when any appeal is s40 concluded or dismissed or abandoned. If there is no such appeal then the two-year period starts to run from the expiration of the time limited for appeal. Where the bishop does not at any relevant time know of the s30(3A), r67A conviction the President may extend the two-year period.

164. Removal from office or prohibition will not automatically result from a sentence of imprisonment. The bishop retains a discretion at all times, but, if the bishop is proposing to impose a penalty, the bishop must first of all s30(2), r68 consult the President of Tribunals to ascertain the President’s views about the seriousness of the criminal charge and the matters relating to it. The bishop must then inform the respondent in writing of details of the proposed penalty, send him or her a copy of the bishop’s letter to the President and the President’s response, and invite the respondent to send written representations within 28 days. If either the bishop or the respondent so desires, and if practicable, a meeting between them should

35 be arranged during this 28-day period; the respondent should have a colleague, advisor or friend present. A member of the bishop’s staff should attend and record the matters discussed, and a copy of the note of the meeting should be sent to the respondent promptly after the meeting. At the end of the 28-day period the bishop should write to the respondent r69 stating whether the penalty of removal from office or prohibition is being imposed.

165. Where a respondent has been convicted of a serious offence or a sentence of imprisonment has been imposed by a court of law in the United Kingdom the respondent should normally expect to be removed from office and to receive an order of prohibition (either for life or for a limited period). This may not, however, apply if the criminal proceedings took place in a foreign court – the bishop will need to take note of the judicial system in question, and consider whether a similar conviction or sentence of imprisonment would have resulted if proceedings had been brought in a United Kingdom court.

166. A respondent has the right to ask the archbishop of the relevant province s30(2), r70-72 to review the decision to impose a penalty of removal or prohibition. Any review must take into account representations of the respondent as well as the bishop’s reasons for imposing the penalty, and all other relevant circumstances. The archbishop will conduct the review with or without a hearing, and may uphold or reverse the bishop’s decision as he thinks fit, after considering all representations and the circumstances of the case.

What happens if there is an acquittal at a criminal trial?

167. Where a criminal charge against a priest or deacon alleges facts which would amount to misconduct if proved, and he or she is acquitted following a criminal trial, any complaint under the Measure alleging exactly the same matters as the criminal charge can be proceeded with in disciplinary proceedings if a review of all the evidence in support of the complaint indicates that, notwithstanding the acquittal, there are good prospects of successfully proving the alleged misconduct. Although the standard of proof in disciplinary proceedings is easier to satisfy than in criminal courts, a tribunal will, nonetheless, look for persuasive, reliable and cogent evidence before it can be satisfied that a serious act of misconduct has been committed.

There may, alternatively, be other matters of misconduct arising out of or in connection with the circumstances of the criminal charge, which can, and should, be dealt with in disciplinary proceedings.

Example: In a criminal trial for theft of money from the church collection

plate, a priest or deacon could admit taking the money, but contend that it

was to meet an urgent personal debt and that the money was going to be

paid back when he or she was able to do so. If the prosecution results in

an acquittal, a complaint under the Measure alleging theft by the

respondent may well not succeed. However, a complaint made by a

churchwarden that, in breach of trust, the priest or deacon had used the

36 church’s money for private purposes, would succeed under the Measure.

Example: A married priest could be acquitted of sexually assaulting a female member of his congregation, where his defence is that the woman consented to the sexual activity so no crime was committed. Nevertheless, his conduct would clearly have been unbecoming and inappropriate to the office and work of a clerk in Holy Orders, and disciplinary proceedings under section 8(1)(d) of the Measure would succeed.

What happens if there are divorce proceedings?

168. If a marriage is dissolved or is subject to an order of judicial separation, and the court hearing the petition for divorce or judicial separation is s30(1), r68-69 satisfied that a priest or deacon has committed adultery, behaved unreasonably or deserted the petitioner, then the bishop may remove the respondent from office or impose a prohibition order (either for life or for s30(3) a limited period) without further proceedings. Under the Measure the bishop has a two-year period within which to act from the date of the decree absolute or order, but should consider the matter and take action as s30(3A), r67A soon as reasonably practicable. Where the bishop does not at any relevant time know of the decree or order the President may extend the two-year period.

169. The bishop retains a discretion at all times, but must consult the President of Tribunals to ascertain the President’s views about the seriousness of the matrimonial conduct in question if the bishop is proposing to impose a s30(2), r68 penalty. The bishop must inform the respondent in writing of the details of the proposed penalty, send him or her a copy of the bishop’s letter to the President and the President’s response, and invite the respondent to send written representations within 28 days. If either the bishop or the respondent so desires, a meeting between them should be arranged during this 28-day period. The respondent should have a colleague, advisor or friend present at the meeting. A member of the bishop’s staff should attend and record the matters discussed, and a copy of the note of the meeting should be sent to the respondent promptly after the meeting. At the end of the 28-day period the bishop should write to the respondent r69 stating whether the penalty of removal from office or prohibition is being imposed.

170. Removal from office or prohibition will not automatically result from a decree absolute of divorce or decree of judicial separation involving adultery, unreasonable behaviour or desertion. Most decrees absolute and decrees of judicial separation are granted as a result of uncontested proceedings on paper so that the evidence in support of the petition is not questioned or tested, although it is accepted by the court. Furthermore, some respondents, recognising that their marriage has broken down irretrievably and could be dissolved against their will in any event after a period of 5 years separation, may choose not to contest allegations in a divorce petition, even if not accepted – this avoids legal expense and argument over sensitive and personal issues. The bishop should bear this in mind as a factor when considering what disciplinary action to take.

171. A respondent has the right to ask the archbishop of the relevant province s30(2), r70-72 to review any decision of removal from office or prohibition. Any review must take into account representations of the respondent as well as the bishop’s reasons for imposing the penalty, and all other relevant circumstances. The archbishop will conduct the review with or without a hearing, and may uphold or reverse the bishop’s decision as he thinks fit, after considering all representations and the circumstances of the case.

Barred clergy under the Safeguarding Vulnerable Groups Act

172. Clergy whose names are entered on the children’s barred list or the adults’ barred list established under the Safeguarding Vulnerable Groups Act are liable to be removed from office by the bishop and prohibited. Before imposing such a penalty the bishop must consult the President of s30, r68 Tribunals. The procedure thereafter is similar to that set out in paragraphs 169 and 171 above in relation to matrimonial breakdowns, including the respondent’s right to ask the archbishop of the relevant province to review the bishop’s decision.

Duty of clergy to report

173. There is a duty upon a priest or deacon to report to the bishop within 28 days of being arrested on suspicion of committing an offence, and of being s33(1) convicted for an offence. There is also a duty upon a priest or deacon to report to the bishop within 28 days if a decree absolute has been made s34 dissolving his or her marriage or if an order of judicial separation is made. The bishop must be informed by the priest or deacon as to whether he or she was respondent in the proceedings, and if so, whether any finding of adultery, unreasonable behaviour or desertion was made.

174. A priest or deacon is under a duty to notify the bishop if included in a s34A barred list under the Safeguarding Vulnerable Groups Act, and to inform the bishop of the reasons for inclusion.

175. An omission to so report is deemed to be a failure to do an act which is s33(2) & s34 required by ecclesiastical law. It is therefore misconduct under the Measure, and is likely to lead to further disciplinary action.

38 THE BISHOP’S DISCIPLINARY TRIBUNAL; “Stage 3”

What is a formal investigation?

176. When the Designated Officer is directed by the bishop to carry out a s12(1)(e), s17 formal investigation, the Designated Officer will enquire into the r28 complaint and then refer the matter in writing to the President so that the President can decide if there is a case to answer. The investigation will not take the form of any preliminary hearing. Any inquiries in the course of the investigation may be conducted by telephone, correspondence (including e-mail) or by personal interview with anyone involved in the matter.

177. It is the duty of the complainant and the respondent to co-operate with the Designated Officer when the inquiries are made. They should answer any r2, r28(3) reasonable inquiries, and if they decline to do so, adverse inferences may be made against them when the President decides whether there is a case to answer, and also if they give evidence at any subsequent disciplinary hearing.

178. The gist of any oral communications with the complainant, respondent or any witness should be recorded by the Designated Officer in written memoranda, but the Designated Officer’s records are privileged from disclosure to any party to the complaint. If, however, any new relevant information is revealed by or on behalf of one of the parties in the course r28(4) of the inquiries, the Designated Officer will pass that information on to the other party and ask that other party to comment on it.

179. The Designated Officer should inform the parties and the bishop of the date when the report to the President is expected to be sent, and notify them when it has been sent.

180. It is recommended that the report from the Designated Officer should cover the following areas:  The substance of the complaint  The substance of the respondent’s answer to the complaint  A summary of the evidence submitted in the case  An analysis of any relevant legal issues  Any other matters which the Designated Officer wishes to bring to the attention of the President.

181. A copy of the registrar’s report for the purposes of preliminary scrutiny should be annexed to the Designated Officer’s report when it is submitted to the President of Tribunals.

182. The contents of the Designated Officer’s written report to the President are confidential and the report will not be disclosed to the complainant, respondent, bishop or any other person.

183. The President of Tribunals will consider the Designated Officer’s report

39 and decide whether there is a case for the respondent to answer, taking into s17(3), r29 account whether the alleged misconduct is potentially sufficiently serious for referral to a bishop’s disciplinary tribunal. If there is a case to answer and the alleged misconduct is sufficiently serious, the President will refer the complaint to a disciplinary tribunal.

184. The President’s decision as to whether there is a case to answer will be put r29(1) into writing and copies sent to the complainant, the respondent, the bishop, and the Designated Officer. If there is a case to answer the President’s r29(2) written decision will specify which allegations of misconduct are to be dealt with at the disciplinary hearing. If there is no case to answer, the r29(3) President will give reasons for the decision.

185. Where the President decides not to refer a complaint to a tribunal, the bishop may, if appropriate, and having regard to the reasons given by the President, advise and warn the respondent in writing as to future behaviour. A copy of the advice and warning should be kept in the respondent’s personal file (known as ‘the blue file’) for an appropriate period. No record of it will be entered in the Archbishop’s list. see s38

Appointment of the members of the tribunal

186. The President will not appoint members of the tribunal unless satisfied s22(2) there is no reason to question their impartiality. Those who have been nominated to the provincial panel have been recognised as possessing social awareness and cultural sensitivity, and a respect for people from different backgrounds. In appointing a tribunal from the provincial panel the President will be sensitive to relevant gender and ethnic backgrounds. Where the complainant or the respondent is from a minority ethnic background the President will usually seek to appoint at least one member of the tribunal from a similar ethnic group or background if practicable. Before proposed members of the tribunal are appointed, the respondent should be notified in writing of their names, their diocese, and the capacity in which they are to be appointed.

187. The respondent may make representations to the President about the s22(2), r37(1) suitability of any of those who are to be appointed to the tribunal. If the President considers there is any substance in the respondent’s representations suggesting that a particular person is not suitable, the r37(2) President should appoint another person instead.

188. The President may at any stage invite the respondent to make representations about the suitability of two proposed reserve members of the tribunal, one ordained and one lay, whom the President would appoint as appropriate in the event that a previously selected tribunal member were unable to hear the complaint.

189. When members of the tribunal are selected for appointment to hear a complaint they should be given a list of the names and addresses of the complainant, the respondent and all witnesses. Any person selected should be invited to state if they know any of those on the list and, if so, to

40 give details of how they know them. The President may then direct the replacement of anyone who in the President’s view may not appear to be impartial.

190. Under no circumstances should members of the tribunal carry out any private enquiries of their own concerning the complaint or discuss it with anyone else. Furthermore, they should take care to avoid receiving any information or comments from the media or other sources about a case in which they are involved.

Conduct of proceedings

191. Proceedings should be conducted in the spirit of co-operation and in r1 accordance with the overriding objective. This includes parties co- r2(1) operating with each other during preliminary procedural stages. The objective is to deal with disciplinary proceedings expeditiously as well as fairly. If a party fails to co-operate then an adverse inference may be r2(2) made against that party.

192. The case for the complainant is conducted by the Designated Officer or other legally qualified person duly instructed by that officer. The s18(1), r106 Designated Officer is a barrister or solicitor of the Legal Office of the National Institutions of the Church of England, and acts wholly independently from the complainant, the respondent and the bishop.

193. It is a fundamental principle of disciplinary proceedings that neither side should be taken by surprise by the other in relation to the evidence that is to be given at a hearing or by any legal submissions that are made. Any failure to observe this principle may result in the tribunal exercising its discretion to exclude evidence or legal submissions if the other party is disadvantaged by not having had prior notice.

194. The Designated Officer or the respondent may at any stage after the proceedings have been referred for a formal investigation apply in writing with stated reasons to the President asking for a direction that the s18(2)(a), r58 complaint be withdrawn. Before making any decision the President should send a copy to the other party and to the bishop and invite each of them to make written observations on the application.

195. If it appears to the President at any stage after the proceedings have been referred for a formal investigation that a conciliation could be brought s18(2)(b), r58 about, he may require that an attempt, or a further attempt at conciliation, s15 as the case may be, should be made. If so, reference should be made to the section in this Code dealing with conciliation (see paragraph 132 onwards).

196. Hearings before a tribunal are normally to be held in private, but will be s18(3)(c), r40 held in public if the respondent so requests or if the tribunal considers that it would be in the interests of justice to hold it in public (for example where there has been false speculation or rumours about a case, it could be deemed fairer to the parties to have a public hearing).

41 197. If a hearing is held in public the tribunal may in the exercise of its discretion, and having heard any representations from or on behalf of the Designated Officer and the respondent, exclude any members of the public from any part of the proceedings. In particular, it may be necessary to s18(3)(c), r40 exclude members of the public to protect the interests of any child, or the private lives of any witnesses including the complainant.

198. The tribunal may, in accordance with the overriding objective, conduct the hearing in any way it considers appropriate having regard to the nature of r39 the complaint and the issues. The parties will normally be entitled to give evidence, call witnesses, question witnesses called by the other party, and r44 address the tribunal on all relevant matters. Oral evidence at a hearing will r45 be given on oath or affirmation, and will be recorded.

199. A hearing may be adjourned whilst in progress. This will only be done r41 where necessary, and for good reason, because any adjournment causes delay in dealing with the proceedings, which is undesirable. Furthermore, adjournments are expensive and it can be difficult to re-arrange a hearing to ensure that parties, tribunal members, legal representatives and witnesses can all attend when required. Where a timetable is provided for the conduct of a hearing, parties should therefore strive to keep within it, so that proceedings do not overrun.

How the tribunal makes its decision

200. The standard of proof to be applied in any disciplinary hearing is the civil s18(3)(a) standard. This means that a complaint is to be proved on a balance of probability, but there is a degree of flexibility when applying that standard. The more serious the complaint the stronger should be the evidence before the tribunal concludes that the complaint is established on the balance of probability.

201. The tribunal makes its decision by way of majority vote, and must give its s18(3)(b), r50(1) written reasons in support. This can be done at the conclusion of a hearing, or the tribunal may adjourn and reconvene at a later date to give its decision, and the person chairing the tribunal may on that occasion sit r50(2) alone. The announcement of the decision must always be made in public, although details disclosing the identity of anyone involved in the case may s18(3)(c) be withheld in the interests of justice. This is particularly relevant to r50(4) protect the interests of children, or the private lives of any witnesses including the complainant.

202. If the tribunal is not unanimous, it should publish one decision or judgment containing the reasoned decision of both the majority and the r50(3) minority.

What penalty can be imposed by a tribunal? s24

203. Before imposing a penalty a tribunal may invite the bishop to make written s19(2), r51 representations on the appropriate penalty, including any mitigating or other circumstances which the bishop may feel appropriate to draw to the

42 attention of the tribunal. The tribunal will send a copy of the bishop’s views to the respondent and to the Designated Officer. The tribunal is not bound to follow any recommendation that the bishop may make, but it should take into account the bishop’s views. If the bishop has given evidence in the course of the proceedings then the tribunal must not consult him about the appropriate penalty.

204. Prohibition for life: This is the most serious penalty that can be imposed. s24(1)(a) It prevents the respondent without limit of time from exercising any functions as a priest or deacon. It should be imposed only where there appears to be no realistic prospect of rehabilitating the respondent back into ministry.

205. Limited prohibition: This is suitable for serious cases where the tribunal is s24(1)(b) satisfied there is a realistic prospect that the respondent, with appropriate pastoral and other support, could in the future resume normal duties of ministry.

206. Removal from office: This penalty removes the respondent from the s21(1)(c) preferment held at the time, but does not prohibit him or her from serving as a clerk in Holy Orders in another post. In serious cases, removal would be combined with prohibition for life or limited prohibition.

207. Revocation of licence: For clergy who hold a licence from the bishop, it s24(1)(d) may be appropriate to terminate the licence so that they no longer minister in the same place. Revoking the licence does not prevent them from seeking to serve in Holy Orders elsewhere. In serious cases, revocation would be combined with prohibition for life or limited prohibition.

208. Injunction: An injunction requires a respondent to do or refrain from s24(1)(e) doing a specified act, and is usually limited in time. More than one injunction arising out of the same complaint can be imposed upon the respondent by a tribunal. An injunction may be appropriate for cases where priests or deacons are generally capable of performing their normal duties but ought to be stopped from dealing with a particular aspect of their duties. Any breach of an injunction is an act of misconduct under the s29 Measure, and could result in further disciplinary proceedings.

209. Rebuke: This is the least serious of the penalties. s24(1)(f)

210. Conditional discharge: A tribunal may decide not to impose any s25 immediate penalty having taken into account all the circumstances of the misconduct and the respondent’s character, but if it does so it has the option of making an order discharging the respondent subject to the condition that there must be no more misconduct by the respondent within a period not exceeding two years. If the respondent does commit further misconduct within that period then the disciplinary tribunal dealing with the new matter on the subsequent occasion may, in respect of the earlier misconduct, impose any penalty that could have been imposed originally. s25(4) The provincial registrar maintains a record of conditional discharges, and r53 only diocesan bishops and registrars have access to it.

43 OTHER MATTERS

What happens to the proceedings if a respondent dies?

211. Any proceedings in respect of an unresolved complaint are automatically r54 terminated on the death of the respondent.

What happens to the proceedings if the complainant dies or becomes seriously ill?

212. On the death, serious illness or incapacity of a complainant who has been r55 nominated by a parochial church council to make the complaint, the council may nominate another person to pursue the complaint. If the council does not nominate another person within 28 days of being invited to do so by the bishop, then any person claiming to have a proper interest in making the complaint may apply in writing to be substituted as complainant. Such an application should be made to the bishop, unless the complaint has already been referred by the bishop to the Designated Officer for a formal investigation, in which case the application should be made to the President.

213. On the death, serious illness or incapacity of a complainant who has not r56 been so nominated, any person claiming to have a proper interest may request in writing to be substituted as the complainant. The request should be sent to the bishop to whom the original complaint was submitted, unless the complaint has meanwhile been referred to the Designated Officer for a formal investigation, in which case the request must be sent to the President.

214. A person will only be substituted as complainant if he or she can demonstrate a proper interest in the complaint, and if it is in the interests r56(3) of justice in all the circumstances.

215. If no other person is nominated or substituted, as the case may be, the President may direct that the complaint is withdrawn, and then no further r57 action will be taken in the proceedings.

Suspension of a priest or deacon

216. A respondent may be suspended by the bishop once a complaint has s36(1) reached the stage when the bishop is deciding what course of action to take (see paragraph 113 above). A priest or deacon may also be suspended if arrested on suspicion of committing a criminal offence.

217. A suspension pending resolution of proceedings should be imposed by the bishop only if necessary, and preferably by agreement with the respondent. Except when the bishop regards the case as particularly urgent and serious, the bishop should attempt to arrange a meeting beforehand to explain the reasons to the respondent. The respondent should be told in advance of the reason for the meeting and should attend with a colleague, advisor or friend (and must be encouraged to do so). A member of the bishop’s staff should be present and record the matters discussed, and a copy of the note

44 of the meeting should be sent to the respondent promptly after the meeting.

218. Suspension does not mean the bishop has formed any view that the complaint of misconduct or allegation of criminal conduct is true, or likely see forms 12a & 13a to be true, and no respondent will be prejudiced in the investigation of the complaint as a result of being suspended.

219. The scope of suspension can extend to all ministerial rights and duties of the respondent, including those relating to public worship, administering the sacraments, baptism, confirmation, marriage, burial, visiting the sick, other pastoral work, preaching and teaching, and administrative duties. For the exercise of The suspension can also cover any rights or duties that are incidental to the powers of patronage office held by the respondent. Consequently, without the bishop’s by an incumbent during a suspension permission, a suspended priest would not normally be able to attend any see s20 Patronage church functions or PCC meetings, vote in any elections to the diocesan (Benefices) Measure synod, exercise powers of patronage, or perform any deanery duties if 1986 appointed as a rural dean or area dean. During a period of suspension a See forms 12a, 12b, respondent’s right to a stipend and housing is to continue unaffected. 13a & 13b

220. When considering whether to impose a suspension the bishop should take into account the interests of the respondent, the respondent’s family, the complainant, any witnesses who may be called upon to testify in the course of proceedings, the local church and community, and the wider church and community. When taking into account the interests of the local church and community the bishop should in particular consider whether their pastoral, liturgical and other needs can be provided for adequately in the absence of the respondent.

221. If a priest or deacon is convicted of certain criminal offences or included on a barred list under the Safeguarding Vulnerable Groups Act, the bishop r61A & r61B may impose a suspension pending consideration of whether a penalty of removal from office or prohibition should be imposed.

222. Where an application is made to the President by a complainant for s36A permission to make a complaint out of time, the bishop may impose a suspension on a priest or deacon pending determination of the application. If the President dismisses the application the suspension will end.

223. The bishop may also impose a suspension if satisfied, on the basis of s36(1)(e) information provided by a local authority or the police, that a priest or deacon presents a significant risk of harm to a child or vulnerable adult –

such a suspension can be imposed where a complaint under the Clergy Discipline Measure has not been made.

Giving notice of suspension

224. If a bishop does decide to suspend he must, by a notice in writing in a r60(2), r61(2), form prescribed by the Clergy Discipline Rules 2005, inform the r61(A), r61(B) respondent of the suspension and also of the terms of suspension, i.e. r61C, r61D & r62

45 precisely what rights and duties are suspended, and the period of forms 12a, 12b, 13a, suspension. A suspension lasts for 3 months, but expires within that time 13b, 14a, 14b, 15a, 15b, 16a, 16b, 17a if meanwhile disciplinary or criminal proceedings end, the application to & 17b. the President is dismissed or if a penalty is imposed, as the case may be. If, however, such proceedings have not meanwhile finished, the application has not been determined or a penalty has not been imposed by the end of the period of suspension, the bishop may extend the suspension s36(3) & (3A) by further periods of 3 months.

225. Where a suspension is imposed, the bishop must notify certain persons named in the Clergy Discipline Rules 2005 of the suspension, such as the archdeacon and the rural or area dean. The bishop may also notify any other person whom the bishop considers should be notified of the r63 suspension. The priest’s or deacon’s congregation should normally be notified when a suspension has been imposed.

226. A bishop may at any time in writing revoke a suspension. s36(2), r64

227. Where a notice of suspension is served on a priest or deacon, the bishop should ensure that appropriate arrangements are put in place to provide for s36(4) the pastoral, liturgical and other needs for the parish concerned, having consulted the churchwardens and the incumbent or priest-in-charge. The rural or area dean should also be consulted.

228. Whilst a notice of suspension remains in force the respondent must not s36(5) interfere with anyone performing the services of a church under such an arrangement (and this means all services, duties, tasks or ministrations, not just services of public worship). If there were any such interference, this would be a grave matter of misconduct, and further appropriate disciplinary action would be taken against the respondent.

229. During a period of suspension, a respondent, or the respondent’s close family, may have increased need for care and support; the bishop should be alert to this, and ensure that appropriate support is offered and made available. A bishop must not personally provide such care and support, for risk of compromising the fairness and impartiality of the disciplinary proceedings (unless the bishop has delegated the disciplinary function to a suffragan or assistant bishop). Providing care and support should be delegated to suffragan or assistant bishops, archdeacons, rural or area deans and other experienced clergy, or appropriate members of the laity, but not to anyone who is involved in the disciplinary proceedings.

230. When a period of suspension ends the bishop should provide appropriate support to help the respondent if returning to normal duties.

Appeal against suspension during proceedings

231. There is a right of appeal against the imposition of a suspension, or a s36(6), r66 further period of suspension. The appeal has to be made in writing to the President of Tribunals within 14 days of receipt of the notice of suspension, and the grounds of the appeal should be set out clearly. The

46 suspension will not meanwhile be stayed but will take effect pending the r66(5) determination of an appeal.

232. The bishop exercises discretion in deciding whether or not to impose a suspension, or further periods of suspension. The President may consider afresh the decision to suspend and substitute his or her own view for that r66(3) of the bishop, and either confirm or revoke the suspension.

Appeals from the tribunal see the Clergy Discipline Appeal 233. A respondent may seek leave to appeal against any penalty imposed by the Rules 2005 bishop’s disciplinary tribunal. A respondent may also seek leave to appeal s20(1) & (1A) on a question of law or fact against any finding of the tribunal. Leave to appeal may be granted either by the tribunal which dealt with the complaint or by the appropriate appellate court.

234. The Designated Officer may seek leave to appeal against any finding of s20(1) & (1A) the tribunal, but only in relation to a question of law.

235. All appeals in the province of Canterbury are heard by the Arches Court of Canterbury, and all appeals in the province of York are heard by the s20(1) Chancery Court of York.

The Archbishops’ List

236. The Archbishops’ list is compiled and maintained jointly by the s38 archbishops, and is kept at Lambeth Palace. A copy of the list is kept by r74 the Archbishop of York at Bishopthorpe. It is not open for public inspection, but is available to the President, diocesan bishops, registrars r74(3) and the Designated Officer.

237. There are six categories of names in the list: (a) those on whom a penalty s38(1) under the Measure has been imposed (or those who were liable to a censure under the Measure’s predecessor, the Ecclesiastical Jurisdiction Measure 1963); (b) those who were deposed from Holy Orders under the Ecclesiastical Jurisdiction Measure 1963; (c) anyone who has executed a deed of relinquishment under the Clerical Disabilities Act 1870; (d) anyone who has resigned following the making of a formal complaint; (dd) anyone whose name is included in a barred list under the Safeguarding Vulnerable Groups Act; and (e) those who, in the opinion of the archbishops, have acted in a manner (not amounting to misconduct) which might affect their suitability for holding preferment (i.e. any office or position requiring the discharge of spiritual duties).

238. Within 21 days of being included in the list under categories (a) to (dd) a s38(2), r75 person is informed of the inclusion and of the particulars recorded. The included person may then request the President of Tribunals to review the matter, and the archbishop of the relevant province may make written representations to the President in response to the request. The President, having reviewed the inclusion, may direct that the person is to continue to be included in the list or is to be excluded, and if to remain included may

47 direct that the recorded particulars be amended.

239. When the archbishops are proposing to include in the list someone falling s38(3), r76 under category (e) in paragraph 237 above, all reasonable steps are to be taken to inform that person of the particulars proposed to be recorded, and to invite him or her to send comments or representations in response to the proposal. If the archbishops, having received and taken into account any response that might be made, decide to include the person on the list, then he or she may request the President to review the decision. The archbishop of the relevant province may then make representations to the President about the matter. Having considered the request and any representations in response, the President can uphold or reverse the archbishops’ decision or require the particulars recorded on the list to be amended.

240. Where a name is included in the Archbishops’ list under categories (d) or s38(4), r78 (e) in paragraph 237 above the inclusion is reviewed by the archbishops after 5 years. The included person is invited to send written comments or representations for the purposes of the review. The bishop of the diocese in which the person resides or holds office, and the bishop of any diocese which was concerned when the person’s name was included, are consulted. Upon review, the archbishops may agree to leave the entry of the name on the list unamended, or keep the name in the list but amend the particulars recorded, or remove the name altogether from the list.

241. The inclusion of a name under categories (d) and (e) may also be reviewed s38(4), at any time if the bishop of a diocese requests a review, or after 5 years r79, r80 following an earlier review if the person included requests a review.

Complaints against bishops and archbishops

242. Formal complaints under the Measure may be made in respect of bishops and archbishops. For the most part the procedure is similar, but not s10(1)(b) & (c) identical, to complaints about priests and deacons, and reference should be made to the Measure and the Clergy Discipline Rules 2005 for full details. r81-90

243. A complaint in respect of a bishop would normally be made to the archbishop of the province where the bishop held office when the alleged s10(2) misconduct occurred. A complaint against an archbishop would be made to the other archbishop.

244. Complaints in respect of bishops would be referred to the registrar of the province (not the diocesan registrar) for the purposes of preliminary scrutiny, and to the registrar of the other province if the complaint is about r82(3) an archbishop.

245. A formal hearing of a complaint against a bishop or archbishop (i.e. during s6(2) “stage 3”) would be before a Vicar-General’s court, rather than before a bishop’s disciplinary tribunal.

48 Removal of prohibition for life and deposition

246. A respondent who is prohibited for life under the Measure, or deposed under the previous Ecclesiastical Jurisdiction Measure 1963, may apply to s26, r97 have nullified that particular penalty, censure or deprivation.

247. The only grounds under the Measure on which the respondent may apply s26(1) are that new evidence has come to light affecting the facts on which the prohibition or deposition was based, or that the proper legal procedure leading to the prohibition or deposition was not followed.

248. An application by a priest or deacon is made to the archbishop. The application should be in writing and state the reasons why it is made. It r97(1) should also state how and when the respondent became aware of the new evidence or discovered that the proper legal procedure may not have been followed. The application should be made promptly once the respondent realises there are grounds to make it.

249. If there is new evidence it should be submitted with the application r97(1) (whether in the form of signed witness statements, photographs, audio or other material). The new evidence will only be taken into account if it is credible and could not have been obtained with reasonable diligence for use at the original hearing.

250. The archbishop on receiving the application and accompanying evidence r97(2) may invite any person involved in the original proceedings to make written representations within 21 days. A copy of any representations received will be sent by the archbishop to the respondent making the application.

251. The archbishop may decide the application with or without a hearing and, r97(3) after consulting the Dean of the Arches and Auditor, will declare whether r97(4) or not the prohibition or deposition is nullified. If it is nullified then it is treated as if it had never been imposed.

252. The decision by the archbishop on the application for removal of the r97(4) prohibition for life or deposition is put into writing with reasons, and a copy is sent to the respondent making the application and to the provincial registrar.

Removal of limited prohibition

253. A respondent who has been prohibited under the Measure (or inhibited s27, r98(1) under the Ecclesiastical Jurisdiction Measure 1963) for a specific time from exercising any functions may apply to the Dean of the Arches and Auditor, sitting with the Vicar-General for each province, for the prohibition (or inhibition) to be removed.

254. The application may only be made by a priest or deacon with the consent and support of, and on a joint application with, the bishop. Before deciding whether to support the respondent, the bishop should, if

49 practicable, confidentially consult the original complainant about the application and its implications. If the penalty was imposed in relation to a matrimonial breakdown the respondent’s former spouse should be consulted if practicable.

255. The application may be dealt with on paper or at a hearing. Copies of the r98(2) written decision are sent to the respondent and bishop jointly making the r98(3) application, and to the provincial registrar.

Legal Aid

256. At a tribunal hearing the case for a complainant is conducted by the Designated Officer; the complainant is not therefore entitled to legal aid.

257. Legal aid may be available for a respondent during “stages 2” and “3”. It may also be available in respect of an appeal against suspension imposed under sections 36(6) or 37(6) of the Clergy Discipline Measure on the basis of information received from a local authority or the police in a safeguarding case. The scheme for legal aid funding is prescribed in the Church of England (Legal Aid) Measure 1994 and the Church of England (Legal Aid) Rules 1995; it is administered by the church’s Legal Aid Commission.

258. Under the funding scheme there is no absolute right to legal aid. Before deciding whether to grant any legal aid, and if so, to what extent, the Legal Aid Commission considers all the circumstances of the matter, including any other financial resources which are available to the respondent.

259. Details about eligibility for legal aid, the Commission’s procedures and an application form can be obtained from the Secretary of the Legal Aid Commission at the Legal Office, Church House, Great Smith Street, London SW1P 3AZ.

Relationship with Capability Procedure

260. The capability procedure under the Ecclesiastical Offices (Terms of Service) Regulations (“the Regulations”) is intended to help office holders improve their performance where it falls below an acceptable minimum standard, whereas the Clergy Discipline Measure (“the Measure”) is concerned with disciplinary proceedings for misconduct.

261. One of the grounds for bringing disciplinary proceedings under the

Measure is neglect or inefficiency in the performance of the duties of office. The Measure is appropriate for cases where there are serious, see s8(1)(c) deliberate or wilful failures. The Regulations are appropriate for cases where the respondent’s skill, aptitude, attitude, health or other physical or mental capabilities are in question. Whether it is more appropriate to deal with alleged neglect or inefficiency under the Regulations, or under the Measure, will need to be determined on a case by case basis.

262. It is in the interests of justice for there to be flexibility between capability

50 procedures under the Regulations and disciplinary proceedings under the Measure, so that cases are dealt with in the most appropriate way. Where appropriate, a complaint under the Measure may be dismissed or withdrawn so that a capability procedure can be instigated, and a capability procedure may be stayed so that a complaint under the Measure can be made.

263. A capability procedure under the Regulations and disciplinary proceedings under the Measure should not normally be actively pursued simultaneously with a respondent in respect of substantially the same conduct (although they can proceed at the same time if the conduct in question is different or, exceptionally, if the overlap between them is not significant or if a capability procedure has almost been concluded when a complaint under the Measure is made). Consequently, where a capability procedure is under way and a complaint is made under the Measure in respect of substantially the same conduct, the disciplinary proceedings should normally take precedence and be concluded first. The bishop should then decide whether it is in the interests of justice to proceed with the stayed capability procedure. A sanction in a capability procedure and a penalty in disciplinary proceedings should not both be imposed in respect of the same specific matter.

Publicity and Media Relations

264. It is important that the Church should be open about any misconduct that is proved to have taken place. Tribunals therefore announce their determination of complaints in public, giving reasons for their decision, although details disclosing the identity of anyone involved in the case may be withheld in the interests of justice (see paragraph 201 above).

265. If a penalty is imposed on a priest or deacon other than after a determination by a tribunal, the penalty and brief particulars of the misconduct should be announced publicly. Details disclosing the identity of any child, or where necessary to protect their private lives the identity of any others involved in the complaint (except the respondent), should be withheld from the announcement to the public.

266. The media may be particularly interested in complaints of misconduct against the clergy. Unfortunately, media coverage in advance of any determination of the complaint can be speculative and misinformed, which can damage not only the complainant and the respondent, but also the local church or community and the wider church. For this reason, it is advisable for anyone involved in a complaint who is approached by the media to refer the enquirer straightaway to the appropriate communications officer, which will normally be the diocesan communications officer.

July 2016

51 Appendix A

Contact details for diocesan bishops and legal officeholders

Province of Canterbury

Archbishop of Canterbury: Lambeth Palace, London, SE1 7JU. Tel: 020 7898 1200 Email: [email protected]

Bishop of Bath and Wells: The Palace, Wells, Somerset, BA5 2PD. Tel: 01749 672341 Email: [email protected]

Bishop of Birmingham: Bishop’s Croft, Old Church Road, Harborne, Birmingham B17 0BG. Tel: 0121 427 1163 Email: [email protected]

Bishop of Bristol: Wethered House, 58a High Street, Winterbourne, Bristol, BS36 1JQ. Tel: 01454 777728 Email: [email protected]

Bishop in Canterbury (the Bishop of Dover acts as diocesan bishop on behalf of the Archbishop of Canterbury): The Bishop’s Office, Old Palace, Canterbury, Kent, CT1 2EE. Tel: 01227 459382 Email: [email protected]

Bishop of Chelmsford: Bishopscourt, Main Road, Margaretting, Ingatestone, Essex, CM4 0HD. Tel: 01277 352001 Email: [email protected]

Bishop of Chichester: The Palace, Canon Lane, Chichester, W Sussex, PO19 1PY Tel: 01243 782161 Email: [email protected]

Bishop of Coventry: The Bishop’s House, 23 Davenport Road, Coventry, CV5 6PW Tel: 024 7667 2244 Email: [email protected]

Bishop of Derby: The Bishop’s House, 6 King Street, Duffield, Belper, DE56 4EU. Tel: 01332 840132 Email: [email protected]

Bishop of Ely: The Bishop’s House, Ely, Cambridgeshire, CB7 4DW. Tel: 01353 662749 Email: [email protected]

Bishop of Exeter: The Palace, Exeter, EX1 1HY. Tel: 01392 272362 Email: [email protected]

Bishop of Gloucester: Church House, 2 College Green, Gloucester, GL1 2LR. Tel: 01452 835511 Email: [email protected]

Bishop of Guildford: Willow Grange, Woking Road, Guildford, Surrey, GU4 7QS. Tel: 01483 590500 Email: [email protected]

Bishop of Hereford: The Bishop’s House, The Palace, Hereford, HR4 9BN. Tel: 01432 271355 Email: [email protected]

Bishop of Leicester: Bishop’s Lodge, 12 Springfield Road, Leicester, LE2 3BD. Tel: 0116 270 8985 Email: [email protected]

Bishop of Lichfield: Bishop’s House, 22 The Close, Lichfield, Staffs, WS13 7LG. Tel: 01543 306000 Email: [email protected]

Bishop of Lincoln: The Old Palace, Minster Yard, Lincoln, LN2 1PU. Tel: 01522 504090 Email: [email protected]

Bishop of London: The Old Deanery, Dean’s Court, London, EC4V 5AA Tel: 020 7248 6233 Email: [email protected]

Bishop of Norwich: The Bishop’s House, Norwich, NR3 1SB. Tel: 01603 629001 Email: [email protected]

53 Bishop of Oxford: Church House Oxford, Langford Locks, Kidlington, Oxford, OX5 1GF. Tel: 01865 208222 Email: [email protected]

Bishop of Peterborough: Bishop’s Lodging, The Palace, Peterborough, PE1 1YA. Tel: 01733 562492 Email: [email protected]

Bishop of Portsmouth: Bishopsgrove, 26 Osborn Road, Fareham, Hants, PO16 7DQ. Tel: 01329 280247 Email: [email protected]

Bishop of Rochester: Bishopscourt, St Margaret’s Street, Rochester, Kent, ME1 1TS. Tel: 01634 842721 Email: [email protected]

Bishop of St Albans: Abbey Gate House, 4 Abbey Mill Lane, St Albans, Herts, AL3 4HD. Tel: 01727 853305 Email: [email protected]

Bishop of St Edmundsbury & Ipswich: The Bishop’s House, 4 Park Road, Ipswich, IP1 3ST. Tel: 01473 252829 Email: [email protected]

Bishop of Salisbury: South Canonry, 71 The Close, Salisbury, SP1 2ER. Tel: 01722 334031 Email: [email protected]

Bishop of Southwark: Trinity House, 4 Chapel Court, Borough High Street, London, SE1 1HW Tel: 020 7939 9421 Email: [email protected]

Bishop of Truro: Lis Escop, Feock, Truro, Cornwall, TR3 6QQ. Tel: 01872 862657 Email: [email protected]

Bishop of Winchester: Wolvesey, Winchester, Hants, S023 9ND. Tel: 01962 854050 Email: [email protected]

54 Bishop of Worcester: The Bishop’s Office, Old Palace, Deansway, Worcester, WR1 2JE. Tel: 01905 731599 Email: [email protected]

Province of York

Archbishop of York: Bishopthorpe Palace, Bishopthorpe, York, YO23 2GE. Tel: 01904 707021 Email: [email protected]

Bishop of Blackburn: Bishop’s House, Ribchester Road, Clayton-le-Dale, Blackburn, BB1 9EF. Tel: 01254 248234 Email: [email protected]

Bishop of Carlisle: Bishop’s House, Ambleside Road, Keswick, CA12 4DD. Tel: 01768 773430 Email: [email protected]

Bishop of Chester: Bishop’s House, Abbey Square, Chester, CH1 2JD. Tel: 01244 350864 Email: [email protected]

Bishop of Durham: Auckland Castle, Bishop Auckland, Co Durham, DL14 7NR. Tel: 01388 602576 Email: [email protected]

Bishop of Leeds: Hollin House, Weetwood Avenue, Leeds, LS16 5NG Tel: 0113 284 4300 Email: [email protected]

Bishop of Liverpool: Bishop’s Lodge, Woolton Park, Liverpool, L25 6DT. Tel: 0151 421 0831 Email: [email protected]

Bishop of Manchester: Bishopscourt, Bury New Road, Salford, Manchester M7 4LE. Tel: 0161 792 2096 Email: [email protected]

Bishop of Newcastle: Bishop’s House, 29 Moor Road South, Gosforth, Newcastle-upon-Tyne, NE3 1PA. Tel: 0191 285 2220 Email: [email protected]

Bishop of Sheffield: Bishopscroft, Snaithing Lane, Sheffield, S10 3LG. Tel: 0114 230 2170 Email: [email protected]

Bishop of Sodor & Man: Bishop’s House, 4 The Falls, Tromode Road, Douglas, Isle of Man, IM4 4PZ. Tel: 01624 622108 Email: [email protected]

Bishop of Southwell & Nottingham: Bishop’s Office, Jubilee House, Westgate, Southwell, Nottinghamshire, NG25 0JH. Tel: 01636 817996 Email: [email protected]

Legal Officeholders:

The President of Tribunals: The Right Honourable Lord Justice McFarlane, c/o The Legal Office, Church House, Great Smith Street, London SW1P 3AZ.

The Deputy President of Tribunals: Sir Mark Hedley, c/o The Legal Office, Church House, Great Smith Street, London SW1P 3AZ.

The Dean of the Arches and Auditor: The Right Worshipful Charles George QC, c/o the Provincial Registry of the province concerned.

The Registrar of Tribunals for the Province of Canterbury: Canon John Rees, 16 Beaumont Street, Oxford OX1 2LZ.

The Registrar of Tribunals for the Province of York: Mr Lionel Lennox, The Provincial Registry, Stamford House, Piccadilly, York YO1 9PP.

The Designated Officer: Mr Adrian Iles, The Legal Office, Church House, Great Smith Street, London SW1P 3AZ.

56 Appendix B B1: Form 1a, Rule 4 Complaint under the Clergy Discipline Measure 2003 about a priest or deacon

When your complaint is To the Bishop of …………………………………….. received by the bishop your name will be disclosed to the person you complain My full name is: …………………………………….. about (“the respondent”) but you may request that your contact details should My contact address, including postcode, is: not be disclosed. ………………………………………………………………………………… …………………………………………………………………………………

………………………………………………………………………………… …………………………………………………………………………………

**Telephone & e-mail details are optional, but it **My contact telephone number is: …………………………… could be helpful to the **My e-mail address is: ………………………………... registrar and bishop to have them

If you tick the box you must I request that my contact details should not be disclosed to the give reasons – your contact respondent for the following reasons: details would then be disclosed to the respondent ………………………………………………………………………………… only if the registrar so ………………………………………………………………………………… directed. …………………………………………………………………………………

………………………………………………………………………………… …………………………………………………………………………………

I wish to make a complaint of misconduct against – State the name of the person you wish to complain about, Name:……………………………………………………………. and the position held by that person at the relevant time. Position held………………………………………………..

I am entitled to make this complaint because:

State how you are entitled to I have been nominated by the Parochial Church Council of make the complaint – fill in the gaps where appropriate, …………………………… ……which has a proper interest in & tick one box only. making the complaint, and I attach a certified copy of the If you have been nominated resolution passed by the Parochial Church Council under by the PCC you MUST attach a certified copy of the s.10(1)(a)(i) of the Clergy Discipline Measure resolutions required under s10(1)(a)(i) of the Clergy or Discipline Measure I am a churchwarden of the parish of ……………………………... which has a proper interest in making the complaint

or For example, you would I have a proper interest in making the complaint because: have a proper interest, if you …………………………………………………………………………… have personally observed or experienced the alleged …………………………………………………………………………… misconduct. …………………………………………………………………………… ……………………………………………………………………………

By law no complaint can be The misconduct about which I complain took place on the following made unless the misconduct date(s): occurred within the last 12 months. If there is good ………………………………………………………………………………… reason why you did not make ………………………………………………………………………………… a complaint within that time ………………………………………………………………………………… limit, you can apply to the President of Tribunals using form 1c for permission to extend it. The misconduct about which I complain is as follows:

………………………………………………………………………………… ………………………………………………………………………………… The matters about which you ………………………………………………………………………………… may complain are set out in s8 of the Clergy Discipline ………………………………………………………………………………… Measure 2003. Summarise ………………………………………………………………………………… the facts of your complaint; ………………………………………………………………………………… include the names if known of anybody you refer to. ………………………………………………………………………………… ………………………………………………………………………………… Please note: ………………………………………………………………………………… If your complaint concerns serious criminal conduct ………………………………………………………………………………… then you should report it to ………………………………………………………………………………… the police or other relevant ………………………………………………………………………………… body. If you do not, the bishop may be under a duty ………………………………………………………………………………… to do so. ………………………………………………………………………………… …………………………………………………………………………………

………………………………………………………………………………… ………………………………………………………………………………… …………………………………………………………………………………

I attach written evidence in support of my complaint, consisting of the following statements and other documents: You must provide evidence in support and send it with 1 ……………………………………………………………………………. the complaint unless the 2 ……………………………………………………………………………. bishop gives permission to 3 ……………………………………………………………………………. send the evidence later. This evidence could be your 4 .…………………………………………………………………………… own signed statement, which 5 ….………………………………………………………………………… can be set out in this form or 6 .….………………………………………………………………………... be in a separate document attached to it. You can also 7 ………….……………………………………………………………….… attach signed statements 8 .…………….……………………………………………………………… from witnesses. All witness (Continue on a separate sheet if necessary) statements should be in form 3 of the Clergy Discipline Rules. Letters or other I believe that the facts of my complaint are true. material such as photographs may be Signed: submitted if relevant.

Unless you sign, the Dated: complaint cannot be considered.

58 B2: Form 2, Rule 17

Clergy Discipline Measure 2003 Respondent’s answer to a Complaint

IMPORTANT NOTICE: IF THIS ANSWER IS NOT RETURNED WITHIN 21 DAYS THE BISHOP / ARCHBISHOP MAY NONETHELESS PROCEED TO DETERMINE WHICH COURSE TO PURSUE UNDER THE MEASURE IN RESPECT OF THE COMPLAINT

*Delete as To the *Bishop/*Archbishop of …………………………………………… appropriate

My full name is ……………………………………………………………….

My contact address, including postcode, is:

…………………………………………………………………………………… …………………………………………………………………………………… ……………………………………………………………………………………

My telephone number is:………………………………

**E-mail address is optional **My e-mail address is: ………………………………….

My place of ministry is: ………………………………………………………...

Enter the name of the complainant and the I have read the complaint of …………………………………………………… date the complaint dated……………………….. was made

*Please tick one box * I admit the misconduct alleged in the complaint only, and enter reasons where or appropriate. * I admit the following misconduct alleged in the complaint: If you admit part but ……………………………………………………………………………… not all the alleged misconduct, please ……………………………………………………………………………… state here the ………………………………………………………………….………….. misconduct which is …………………………………………………………….……………….. admitted but deny the other alleged misconduct because: ……………………………………………………………………………… Briefly summarise ……………………………………………………………………………… your reasons for denying the other ……………………………………………………………………………… alleged misconduct ……………………………………………………………………………… ………………………………………………………………………………

* I deny the misconduct alleged in the complaint because:

Briefly summarise ……………………………………………………………………………… your reasons for ……………………………………………………………………………… denying the alleged ……………………………………………………………………………… misconduct ……………………………………………………………………………… ………………………………………………………………………………

………………………………………………………………………………

59 A summary of my version of events is as follows:

Briefly summarise the …………………………………………………………………………………… facts of your case. …………………………………………………………………………………… The evidence which …………………………………………………………………………………… you send in support of your answer (see …………………………………………………………………………………… below) should go into …………………………………………………………………………………… greater detail. ……………………………………………………………………………………

In mitigation for the misconduct which I admit, I wish to say: ……………………………………………………………………………………

If you admit the …………………………………………………………………………………… misconduct, or some …………………………………………………………………………………… of the alleged …………………………………………………………………………………… misconduct, then state here any factors you …………………………………………………………………………………… wish the bishop to …………………………………………………………………………………… bear in mind when deciding on the …………………………………………………………………………………… appropriate course of …………………………………………………………………………………… action. ……………………………………………………………………………………

You may provide The written evidence in support of my answer is attached, and consists of evidence in support of the following statements and other documents: your answer. This evidence could be 1 .………………………………………………………………………………. your own signed 2 .………………………………………………………………………………. statement, which can 3 .………………………………………………………………………………. be set out in this form or be in a separate 4 .………………………………………………………………………………. document attached to 5 .…….………………………………………………………………………… it. You can also attach 6 .……….……………………………………………………………………… signed statements from witnesses. All witness 7 .………….…………………………………………………………………… statements should be 8 .…………….………………………………………………………………… in form 3 of the Clergy (Continue on a separate sheet if necessary) Discipline Rules. Letters or other material such as photographs may be submitted if relevant. I believe that the facts of my answer are true.

You must sign your Signed: answer. Dated:

B3: Pro-forma Letter of Acknowledgment

Complainant’s name & address

Concerning a Complaint of Misconduct about The Reverend [Name]

Dear [Name of Complainant],

I acknowledge receiving on [date] your written complaint dated [……] about The Reverend [Name]. Your complaint will be given full consideration and dealt with in the most appropriate way according to the procedures laid down by law.

The first stage in dealing with your complaint will be to refer it to the diocesan registrar. The registrar will advise me about whether you have a proper interest in making the complaint (in other words, whether you are entitled in law to make the complaint). The registrar will also advise me about whether there is sufficient substance in the complaint to justify instituting disciplinary proceedings. The registrar is normally expected to report back on these matters within 28 days. I will then read that report to enable me to decide on the proper course to take.

After considering the registrar’s report, I could, if you do not have a proper interest or there is not sufficient substance, dismiss the complaint with a written explanation to you in writing of the reason for dismissal. If the complaint is not dismissed, I would invite The Reverend [Name] to answer the complaint in writing, and then I would decide which of the following courses is the most appropriate: (i) no further action be taken, in which case I would notify you of the reasons for this, (ii) the matter to remain on the record conditionally for a fixed period of up to 5 years, (this means that no further action would be taken in respect of your complaint unless a further complaint of misconduct were made against The Reverend [Name] during that period), (iii) an attempt to be made at conciliation between you and The Reverend [Name], to explore how the complaint could be resolved by agreement, (iv) an appropriate penalty to be imposed on The Reverend [Name] with his/her consent, (but I would not decide on this course of action without first consulting you), (v) the complaint to be formally investigated by an officer of the Church and then, if appropriate, referred to a Bishop’s Disciplinary Tribunal for determination at a full hearing.

I hope to decide the appropriate course to take within 28 days of receiving the registrar’s report, and will notify you in writing of the decision.

While the complaint proceeds you should not discuss it with The Reverend [Name] who will now be informed that a complaint has been made.

[You may wish to receive care and support at this time. I will not personally be able to give it to you, because, as bishop, I must remain impartial. However, I have asked [……………] to provide you with care and support on my behalf, and (s)he will be contacting you shortly. His/her contact details are: [address, phone no. etc]

61 B4: Pro-forma Registrar’s letter of notification to the Respondent

Respondent’s name & address

Concerning a complaint under the Clergy Discipline Measure 2003

Dear [Name of Respondent],

The Bishop of […………] has referred to me for preliminary scrutiny a complaint made against you by [name of complainant]. A copy of that complaint and of the evidence in support is enclosed so that you may be aware of what is happening.

The purpose of the preliminary scrutiny is limited to considering the complaint so that I can send the bishop a written report setting out my views on: (i) whether the complainant has, within the meaning of s10 of the Clergy Discipline Measure 2003, a proper interest in making the complaint, and, (ii) whether there is sufficient substance in the complaint to justify proceeding with it.

There is no need for you to make any submissions at this stage in response to the complaint. If the complaint proceeds beyond the preliminary scrutiny stage you will have the opportunity to respond in detail with evidence in support within a further 21 day period.

I also enclose a copy of the leaflet A complaint has been made about me – what happens now? I hope you will find it helpful as an introductory guide to the Clergy Discipline Measure. More detailed guidance is set out in the Code of Practice, which you can access at: www.churchofengland.org/about-us/structure/churchlawlegis/clergydiscipline/cdmcode.aspx

I expect to send my report to the bishop by [date].

While the complaint proceeds you should not discuss it with [name of complainant].

62 B5: Pro-forma Bishop’s letter to the Respondent

Respondent’s name & address

Concerning a complaint under the Clergy Discipline Measure 2003

Dear [Name of Respondent],

A formal complaint has been made against you by [name of complainant]. The details of that complaint are being sent to you by the diocesan registrar so that you may know more about it.

You [and your family] may wish to receive care and support at this time, and so I will ensure that you have all the support and care that you may need. I will not personally be able to give it to you, because, under the terms of the Measure, I have a central role as diocesan bishop in the administration of discipline, and I must therefore remain, and be seen to remain, impartial. Consequently, I have asked [Name] to provide you with care and support on my behalf, and (s)he will be contacting you very shortly.

Any discussions you have with [Name] will be completely confidential. I will not be informed about them unless you so request.

I trust you will get in touch with [Name] whenever you need to, and I strongly encourage you to do so. His/her address, phone number and e-mail details are: [address etc]

If you do not believe [Name] would be suitable to give you the care and support you need, please let me know and I will ask someone else.

63 B6: Pro-forma Bishop’s letter – no further action

Complainant’s name & address

Concerning a Complaint of Misconduct against The Reverend [Name]

Dear [Name of Complainant],

I am grateful to you for bringing this matter to my attention. The diocesan registrar has now reported back to me, and The Reverend [Name] has sent an answer in response to your complaint together with evidence in support. Having very carefully considered the whole matter, I have decided that it is not appropriate to take any further action on your complaint.

The reasoning for my decision is as follows: [etc]

You are however entitled within 14 days of receiving this letter to ask the President of Tribunals to review my decision if you are dissatisfied with it. The request should be in writing, and you should explain in it why you believe I am wrong. Any request for a review should be accompanied by copies of: (i) your complaint, (ii) the answer from The Reverend [Name], (iii) the evidence in support of the complaint and the answer, (iv) the registrar’s report, and (v) this letter.

A form is provided by the Clergy Discipline Rules 2005 for you to use, and it will help you set out the required information (a copy can be obtained from …………………….. ). You are not permitted to send any new or fresh evidence in support of your complaint. The President of Tribunals will only overrule my decision to take no further action if he is satisfied that I am plainly wrong.

Any request for a review of my decision should be sent to The President of Tribunals, c/o The Legal Office, Church House, Great Smith Street, London SW1P 3AZ.